In a recent decision, the Public Employment Relations Board found the County of Santa Clara violated the MMBA when it banned the union president from trading shifts with other employees. Like many employers in public safety, the Santa Clara County Sheriff's Department allows employees to trade shifts to get special days off. The Santa Clara County Correctional Peace Officers Association president made use of the day trades in part to connect with members working different shifts. Then, the Department banned the union president from doing so ostensibly because he did not repay a day. But the Department's reasoning fell apart under scrutiny and the Board held the Department's conduct constituted unlawful interference.
The Board also disapproved of prior decisions that said interference with a union's rights did not necessarily follow from discrimination against a labor leader. The Board found prior cases, including, Novato Unified School District, are "contrary to the overwhelming weight of PERB case law on this issue." Therefore, the Board found the Department's retaliatory conduct also violated the union's rights.
Mastagni Holstedt Senior Associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.
Showing posts with label Correctional Officers. Show all posts
Showing posts with label Correctional Officers. Show all posts
Wednesday, November 15, 2017
Monday, January 30, 2017
Third Appellate District Upholds Elimination of Pension Pick Ups
In San Joaquin County Correctional Officers' Association v. County of San Joaquin the Court of Appeal upheld a County’s ability to force employees to pay a portion of cost of living (“COLA”) adjustments to their retirement program. This case involved two laws governing public employee retirement, the County Employees Retirement Law of 1937 (“CERL”) and the Public Employees’ Pension Reform Act of 2013 (“PEPRA”).
Prior to PEPRA’s passage, the default retirement program arrangement was that counties and county employees shared the cost of COLA contributions to retirement programs. However, as an option, CERL permitted counties to pay all of the cost of COLA contributions of its employees if it chose to do so. This was known as a “pickup.” This pick up was a common strategy employed by Counties to provide a benefit that was less expensive than a salary adjustment. In 1975, San Joaquin was one of the counties that agreed to pay the employee share of COLA contributions as part of some of its MOUs.
PEPRA was passed in 2013 to reduce unfunded liabilities in public employee retirement systems. One of PEPRA’s provisions seeks to eliminates the pickups of the employee share of COLA contributions, but does not take effect until 2018.
In 2012, the County negotiated a new MOU with the San Joaquin County Correctional Officers’ Association which eliminated the pickup. The membership voted the MOU down and impasse procedures were engaged. Once impasse was reached, the County unilaterally imposed the elimination of its pick up as part of last best and final offer. The Association challenged the imposition arguing that PEPRA shielded them from such a change until 2018.
Rejecting the Association's challenge, the Court found counties have always had the power to eliminate or reduce pickup under CERL. The CERL permitted the pick up employee costs of COLA contributions, but did not require the pickups nor restrict the employers ability to modify or eliminate them. The court concluded, “In short, the County always has had the power to eliminate the COLA pickup, subject to labor laws, and those laws permitted the county to do so in the event of a bargaining impasse, which occurred. Nothing in PEPRA limited the County’s power in this regard.”
Interestingly, the court cited Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal. App. 5th 674, 681, review granted Nov. 22, 2016, (MAPE) in explaining "the historical backdrop animating recent pension reform legislation in California", but "express[ed] no view" over MAPE's "interpretation of precedent regarding the validity of changes to retirement benefits."
Prior to PEPRA’s passage, the default retirement program arrangement was that counties and county employees shared the cost of COLA contributions to retirement programs. However, as an option, CERL permitted counties to pay all of the cost of COLA contributions of its employees if it chose to do so. This was known as a “pickup.” This pick up was a common strategy employed by Counties to provide a benefit that was less expensive than a salary adjustment. In 1975, San Joaquin was one of the counties that agreed to pay the employee share of COLA contributions as part of some of its MOUs.
PEPRA was passed in 2013 to reduce unfunded liabilities in public employee retirement systems. One of PEPRA’s provisions seeks to eliminates the pickups of the employee share of COLA contributions, but does not take effect until 2018.
In 2012, the County negotiated a new MOU with the San Joaquin County Correctional Officers’ Association which eliminated the pickup. The membership voted the MOU down and impasse procedures were engaged. Once impasse was reached, the County unilaterally imposed the elimination of its pick up as part of last best and final offer. The Association challenged the imposition arguing that PEPRA shielded them from such a change until 2018.
Rejecting the Association's challenge, the Court found counties have always had the power to eliminate or reduce pickup under CERL. The CERL permitted the pick up employee costs of COLA contributions, but did not require the pickups nor restrict the employers ability to modify or eliminate them. The court concluded, “In short, the County always has had the power to eliminate the COLA pickup, subject to labor laws, and those laws permitted the county to do so in the event of a bargaining impasse, which occurred. Nothing in PEPRA limited the County’s power in this regard.”
Interestingly, the court cited Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal. App. 5th 674, 681, review granted Nov. 22, 2016, (MAPE) in explaining "the historical backdrop animating recent pension reform legislation in California", but "express[ed] no view" over MAPE's "interpretation of precedent regarding the validity of changes to retirement benefits."
Friday, August 2, 2013
PERB: Sheriff’s Office Must Meet and Confer Over Peace Officer Background Evaluation Process for Correctional Officers
In County of Santa Clara (July 25, 2013) PERB Dec. No. 2321-M, the Public Employment Relations Board ruled a background evaluation process for transitioning correctional officers to correctional deputies with peace officer status is a mandatory subject of bargaining under most circumstances, overruling a contrary decision by PERB Office of General Counsel.
Santa Clara is one of the counties in California that employs non-peace officer correctional officers in county jails. In 2010, the Sheriff’s Office decided to transition to correctional deputies under Penal Code section 830.1(c) and had some discussions with the Santa Clara Correctional Peace Officers Association about the process for transitioning existing employees. Initially, the Sheriff’s Office claimed the process was voluntary and if officers wanted to stay as correctional officers they would be grandfathered in.
But then, the Sheriff’s Office told officers if they did not apply to be peace officers they would be denied promotions, lose assignments, and could lose their jobs. When the union would not concede on some of the details of the process, the Sheriff’s Office imposed, claiming they did not have to meet and confer with the union or go through impasse procedures.
PERB rejected the Sheriff’s Office’s claims. PERB ruled how the Sheriff’s Office would conduct the background evaluation process for becoming a peace officer was a mandatory subject of bargaining. PERB explained the evaluation process was different than a typical background process because it was for current employees.
PERB also made new law, distinguishing an earlier case about background checks. In Sutter County In-Home Supportive Services Public Authority (2007) PERB Dec. No. 1900-M, PERB said some background checks are not subject to meet and confer. In this case, PERB explained key elements of how to do a peace officer background process are discretionary. PERB also found the correctional officers already had a comprehensive background evaluation when they were first hired and that jails were fundamentally different than people’s homes.
Therefore, PERB ruled “that where an employer imposes on employees, who have already undergone a background evaluation as a condition of employment, a further such evaluation as a condition of continued assignment to the employee’s present position, the employer’s decision [is] within the scope of representation under the MMBA."
Mastagni attorney Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.
Santa Clara is one of the counties in California that employs non-peace officer correctional officers in county jails. In 2010, the Sheriff’s Office decided to transition to correctional deputies under Penal Code section 830.1(c) and had some discussions with the Santa Clara Correctional Peace Officers Association about the process for transitioning existing employees. Initially, the Sheriff’s Office claimed the process was voluntary and if officers wanted to stay as correctional officers they would be grandfathered in.
But then, the Sheriff’s Office told officers if they did not apply to be peace officers they would be denied promotions, lose assignments, and could lose their jobs. When the union would not concede on some of the details of the process, the Sheriff’s Office imposed, claiming they did not have to meet and confer with the union or go through impasse procedures.
PERB rejected the Sheriff’s Office’s claims. PERB ruled how the Sheriff’s Office would conduct the background evaluation process for becoming a peace officer was a mandatory subject of bargaining. PERB explained the evaluation process was different than a typical background process because it was for current employees.
PERB also made new law, distinguishing an earlier case about background checks. In Sutter County In-Home Supportive Services Public Authority (2007) PERB Dec. No. 1900-M, PERB said some background checks are not subject to meet and confer. In this case, PERB explained key elements of how to do a peace officer background process are discretionary. PERB also found the correctional officers already had a comprehensive background evaluation when they were first hired and that jails were fundamentally different than people’s homes.
Therefore, PERB ruled “that where an employer imposes on employees, who have already undergone a background evaluation as a condition of employment, a further such evaluation as a condition of continued assignment to the employee’s present position, the employer’s decision [is] within the scope of representation under the MMBA."
Mastagni attorney Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.
Monday, October 1, 2012
Brown Vetoes Limits on Cooperation with ICE
Governor Jerry Brown vetoed AB 1081, the so-called "Trust Act," which would have limited local law enforcement's ability to cooperate with Immigration and Customs Enforcement in local correctional facilities. The bill sought to prohibit local law enforcement from honoring ICE holds unless the suspect is charged or has been convicted of certain "serious" or "violent" felonies. In his veto message, the Governor noted the law would prohibit honoring holds on many suspects whose crimes involved child abuse, drug trafficking, selling weapons, using children to sell drugs, and gang activity.
Court of Appeal Rules Administrative Hearing Officers May Hear Pitchess Motions in Peace Officer Discipline Cases
In Riverside County Sheriff’s Department v. Jan Stiglitz (September 28, 2012) 2012 WL 4466333, the Court of Appeal decided peace officers can obtain Pitchess discovery in an administrative hearing provided under POBR.
The case started after the Riverside County Sheriff's Department fired a correctional deputy for falsifying her time records. The officer appealed her termination. She asserted that the penalty of termination was disproportionate. She asked the hearing officer for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. After the hearing officer granted the request, the Department went to court to stop it.
The Court ruled Pitchess discovery is available in a Section 3304(b) administrative hearing if it is relevant. The Court reasoned that POBR entitles officers to a full evidentiary hearing, including relevant discovery. The Court decided that though the Evidence Code sections codifying the Pitchess process were ambiguous, they do not preclude administrative hearing officers from considering requests for peace officers' personnel files under some circumstances.
The Court ruled Pitchess discovery is available in a Section 3304(b) administrative hearing if it is relevant. The Court reasoned that POBR entitles officers to a full evidentiary hearing, including relevant discovery. The Court decided that though the Evidence Code sections codifying the Pitchess process were ambiguous, they do not preclude administrative hearing officers from considering requests for peace officers' personnel files under some circumstances.
Monday, April 2, 2012
US Supreme Court Approves Strip-Searches Even For Suspects Arrested for Minor Offenses
On April 2, 2012, the United States Supreme Court held that the Constitution permits correctional facilities to conduct blanket strip searches on all arrestees entering general population, even those arrested only for minor offenses. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington et al. (2012) No. 10-945, slip. op., settles a division among lower courts about whether public safety professionals needed "reasonable suspicion" before strip-searching nonindictable offenders.
The case arose after Albert Florence was arrested in 2003 on a bench warrant related to his failure to pay a fine or appear at an enforcement hearing. Arresting officers took him to a county correctional facility. At the correctional facility he was required to shower with a delousing agent while officers checked him for scars, marks, gang tattoos and contraband. Officers also visually inspected his body openings. After six days he was transferred to a second facility with a similar procedures. The procedure was the same for all arrestees and no one touched Florence during the process. Florence later filed a federal civil rights lawsuit claiming the search was unconstitutional because he was arrested for a minor crime.
The Court rejected Florence's argument. The Court's decision emphasized that "Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what detainees may carry on their bodies." The Court found ample evidence that suspects arrested for even minor crimes carry contraband into facilities, citing evidence from California where "San Francisco Officers have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting."
Accordingly, the Court concluded the reasons a person is arrested has little bearing on whether intake procedures are constitutional. Instead, the Court found the policy was reasonable and that courts should defer to public safety professionals to make the decision about when and how to search inmates.
The case arose after Albert Florence was arrested in 2003 on a bench warrant related to his failure to pay a fine or appear at an enforcement hearing. Arresting officers took him to a county correctional facility. At the correctional facility he was required to shower with a delousing agent while officers checked him for scars, marks, gang tattoos and contraband. Officers also visually inspected his body openings. After six days he was transferred to a second facility with a similar procedures. The procedure was the same for all arrestees and no one touched Florence during the process. Florence later filed a federal civil rights lawsuit claiming the search was unconstitutional because he was arrested for a minor crime.
The Court rejected Florence's argument. The Court's decision emphasized that "Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what detainees may carry on their bodies." The Court found ample evidence that suspects arrested for even minor crimes carry contraband into facilities, citing evidence from California where "San Francisco Officers have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting."
Accordingly, the Court concluded the reasons a person is arrested has little bearing on whether intake procedures are constitutional. Instead, the Court found the policy was reasonable and that courts should defer to public safety professionals to make the decision about when and how to search inmates.
Monday, March 19, 2012
Court of Appeal Upholds Termination of Correctional Officer For Telling Inmate to "Go Ahead" With Suicide Attempt
In Cate v. California State Personnel Bd. (Cal. Ct. App., Mar. 12, 2012, E053011) 2012 WL 810662, the Court of Appeal upheld the termination of a correctional officer accused of taunting a suicidal inmate. The Department terminated the officer, in part because he allegedly told another officer the inmate said “that she was going to hang herself” and he responded by saying “go ahead.” The inmate later attempted suicide.
On review, the Court of Appeal noted “the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in, harm to the public service.” As a result, the Court decided against reducing the officer's punishment from termination to a 30-day suspension.
On review, the Court of Appeal noted “the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in, harm to the public service.” As a result, the Court decided against reducing the officer's punishment from termination to a 30-day suspension.
Wednesday, February 22, 2012
Court of Appeal Limits Former Officers' POBR Rights
In a carefully tailored decision, the Court of Appeal in Barber v. California Dept. of Corrections and Rehabilitation (Cal. Ct. App., Feb. 15, 2012) 12 Cal. Daily Op. Serv. 1936, held POBR does not entitle a former peace officer to review years of personnel records. The decision emphasized the plaintiff made a "broad request" to review his personnel records only after he had been terminated.
The plaintiff was an employee with the California Department of Corrections and Rehabilitation (CDCR) until being terminated in April of 2009. Six months after his termination, the plaintiff requested copies of his CDCR personnel records. CDCR denied the request and the plaintiff filed a petition for writ of mandamus and a complaint for declaratory and injunctive relief seeking copies of the records under POBR. The superior court denied plaintiff’s requests, and plaintiff appealed.
Government Code section 3306.5, part of POBR, states that an employer of public safety officers shall permit a requesting officer to view or copy personnel files that have or are being used to determine that officer’s qualifications for benefits or disciplinary action. The Court of Appeal found the right to inspect records only applied to public safety officers and plaintiff was no longer a public safety officer after his termination went into effect. Because plaintiff made his request for records well after being terminated from CDCR, he was not entitled to access the records. The court, therefore, affirmed the ruling of the lower court and awarded CDCR its costs on appeal.
The plaintiff was an employee with the California Department of Corrections and Rehabilitation (CDCR) until being terminated in April of 2009. Six months after his termination, the plaintiff requested copies of his CDCR personnel records. CDCR denied the request and the plaintiff filed a petition for writ of mandamus and a complaint for declaratory and injunctive relief seeking copies of the records under POBR. The superior court denied plaintiff’s requests, and plaintiff appealed.
Government Code section 3306.5, part of POBR, states that an employer of public safety officers shall permit a requesting officer to view or copy personnel files that have or are being used to determine that officer’s qualifications for benefits or disciplinary action. The Court of Appeal found the right to inspect records only applied to public safety officers and plaintiff was no longer a public safety officer after his termination went into effect. Because plaintiff made his request for records well after being terminated from CDCR, he was not entitled to access the records. The court, therefore, affirmed the ruling of the lower court and awarded CDCR its costs on appeal.
Tuesday, January 17, 2012
Federal Court Signals End for CDCR Receivership
The federal judge overseeing the federal receivership of California's state prison system announced today "the end of the Receivership appears to be in sight" after six years of federal intervention in California's prison system. The federal court took control over parts of the state prison system after finding constitutional violations and appointed a receiver to oversee significant structural changes. The state challenged the court's order, ultimately resulting in the United States Supreme Court case Brown v. Plata, which upheld the receivership.
Thursday, December 1, 2011
Court of Appeal Recognizes Corrections Professionals' Special Expertise
In Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274, the Sixth District Court of Appeal ruled superior courts must consider inmates' rights to view confidential information to challenge parole denials on a case-by-case basis and directed the court to consult corrections professionals to help it decide what the inmate's attorney could receive. The case went on appeal after a superior court judge ordered a warden to choose between producing unredacted copies of confidential information to a prisoner or opposing prisoner's petition without relying on confidential information. The Court rejected such a blanket rule and acknowledged corrections professionals have a special role to play in determining why records should be confidential.
In reaching its decision, the Court observed:
[Q]uestions of confidentiality are complex and can only be made by trained, experienced correctional authorities knowledgeable about the inmate in question, the entire content of his file (not just the contested documents the court reviews), prison life in general, morality and ethics of the prison setting, prison relationships, and the rehabilitative process. In many cases the reasons for confidentiality may not spring from the face of the document but may be based on other factors in the inmate's file or other conditions in the institution, or a psychological factor that would require expert analysis to appreciate.’ ... ‘Such a hearing would allow the custodian of records ... to explain the significance of the documents and the reasons for their being withheld. Anything less would have the court acting in a vacuum, unable to obtain or use the factual tools which are essential to an informed judgment.’
As a result, the Court of Appeal ordered the superior court to set an in camera hearing with corrections professionals to determine how much, if any, of the confidential files could be turned over to the inmate's attorney.
In reaching its decision, the Court observed:
[Q]uestions of confidentiality are complex and can only be made by trained, experienced correctional authorities knowledgeable about the inmate in question, the entire content of his file (not just the contested documents the court reviews), prison life in general, morality and ethics of the prison setting, prison relationships, and the rehabilitative process. In many cases the reasons for confidentiality may not spring from the face of the document but may be based on other factors in the inmate's file or other conditions in the institution, or a psychological factor that would require expert analysis to appreciate.’ ... ‘Such a hearing would allow the custodian of records ... to explain the significance of the documents and the reasons for their being withheld. Anything less would have the court acting in a vacuum, unable to obtain or use the factual tools which are essential to an informed judgment.’
As a result, the Court of Appeal ordered the superior court to set an in camera hearing with corrections professionals to determine how much, if any, of the confidential files could be turned over to the inmate's attorney.
Wednesday, November 16, 2011
Court Blocks Dissidents' Attempt to Split Correctional Peace Officers' Union
The Santa Clara County Superior Court blocked an attempt by dissident union members to split the Santa Clara County Correctional Peace Officers' Association in two. In May 2011, a minority of SCCCPOA board members, including the vice president, formed a rival union and filed a petition to represent new peace officer classifications. The petition was filed months after the window period for decertification and unit modification petitions. However, rather than reject the untimely petition, the County began to process the petition and attempted to schedule a decertification election even though SCCCPOA and the County were in the middle of contract negotiations. The County claimed it should be excused from following the established window period because it was impossible for the rival group to comply and asserted the County could ignore the rules in special circumstances. SCCCPOA then filed a Petition for Writ of Mandate to compel the county to reject the untimely petition.
The Court granted SCCCPOA's petition, rejecting the County's claims. First, the Court found the local rules establishing window periods for unit modification and decertification petitions are mandatory. Second, the Court noted there is no "impossibility" exception to Government Code section 3507.1, which requires local agencies to follow their local rules adopted pursuant to the MMBA. Finally, the Court held the MMBA does not permit case-specific decisions to ignore local rules. As a result, the Court agreed to issue a writ of mandate compelling the County to reject and refuse to process the rival group's petition. Mastagni Law attorneys David P. Mastagni, Kathleen N. Mastagni Storm, and Jeffrey R. A. Edwards represented SCCCPOA in the action.
Monday, October 10, 2011
Court of Appeal Upholds Furloughs for Correctional Officers
In Brown v. Superior Court of Alameda (1st DCA, Oct. 3, 2011, A127292) 2011 WL 4537946, the Court of Appeal overturned CCPOA's trial court victory, holding self-directed furloughs under two executive orders did not violate California Labor Codes prohibiting “kickbacks” by employers or minimum wage laws.
CCPOA attempted to nullify self-directed three-day/month furloughs. Under the orders, employees were permitted to take the furloughs whenever they preferred. If the employees did not use the three furlough days by the end of the month, the days were to be used at a future date, prior to the employee using any form of paid leave. The furlough days needed to be used prior to June 2012 or they would be eliminated. CCPOA claimed the State was essentially asking its members to work for free.
The Court found the Governor had a right to impose the furloughs as the agencies which members of CCPOA worked for were included in the 2008 and 2009 Budget Acts, which were approved by the Legislature, and were part of the extended furlough program. The Court also found the manner in which the furloughs were implemented did not violate applicable California Labor Codes as employers were not taking “kickbacks” from employees or secretly paying them less. The court also found the furlough program did not violate minimum wage laws. The Court also overturned the trial court’s order for back pay for union members.
CCPOA attempted to nullify self-directed three-day/month furloughs. Under the orders, employees were permitted to take the furloughs whenever they preferred. If the employees did not use the three furlough days by the end of the month, the days were to be used at a future date, prior to the employee using any form of paid leave. The furlough days needed to be used prior to June 2012 or they would be eliminated. CCPOA claimed the State was essentially asking its members to work for free.
The Court found the Governor had a right to impose the furloughs as the agencies which members of CCPOA worked for were included in the 2008 and 2009 Budget Acts, which were approved by the Legislature, and were part of the extended furlough program. The Court also found the manner in which the furloughs were implemented did not violate applicable California Labor Codes as employers were not taking “kickbacks” from employees or secretly paying them less. The court also found the furlough program did not violate minimum wage laws. The Court also overturned the trial court’s order for back pay for union members.
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