New Law Bars Public Employers From Searching Cell Phones, Personal Devices Without Warrant

On October 8, 2015, Governor Brown signed S.B. 178, the California Electronic Communications Privacy Act (CalEPCA).  CalEPCA prevents a government entity from compelling disclosure of electronic data without warrant. The Act covers both personal devices and online services that store personal data. To waive this protection, the authorized user must give consent to the government agency seeking the information.

Public safety agencies often have policies that apply to "personal communication devices" (PCD). It's likely, however, that many of these sections violate CalEPCA.  For example, some Lexipol PCD policies used by many departments permit administrative searches of both department-issued and personally owned devices.  Under these policies, the employer can track the employee's location, inspect message content, and access online information.  Some Departments have attempted to compel employees to turn over text messages or phone logs without a warrant.

Now, absent an emergency or the employee's consent, the agency needs a warrant to get any of this information. Many public safety departments will have to change their current policies to conform to CalEPCA. As a mandatory bargaining subject, the department and union will have to "meet and confer" to adopt a new policy governing PCDs.

Governor Vetoes Union Rep-Member Privilege, Signs Bills on Brady List Protections, Bargaining, Release Time

The Governor took action on several bills affecting public safety labor rights.  The Governor vetoed AB 729, which would have protected labor leaders from having to testify about communications with members.  In his veto message, the Governor wrote, "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney.  Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations."  The Governor's veto underscores the importance of connecting employees with a union lawyer on the onset of disciplinary investigations to ensure privileged communications.

The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.

The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list.  The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets.  PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.

The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table.  The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.

The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.

Court of Appeal Permits Waiver of POBR Rights In Limited Circumstances

In Lanigan v. City of Los Angeles (Cal. Ct. App., Oct. 4, 2011) 2011 WL 4552533, the Court of Appeal for the Second District overturned the trial court, finding POBR protections can be waived in a minority of discipline cases. The case concerned a Los Angeles police officer facing several serious discipline charges resulting from his treatment of an officer from another department. The Department proposed termination and the officer entered into a detailed settlement agreement under which he was reinstated.  He also agreed to specific future discipline in the event of additional disciplinary charges being filed against him for harassing or failing to cooperate with officers of an outside agency, and agreed to waive several of his rights under POBR.

Within a year, the officer again faced discipline charges for providing false information and failing to cooperate with an LASD officer.  In response, the Department processed his resignation pursuant to the settlement agreement.  He petitioned for peremptory writ of mandate to obtain judicial review of the LAPD’s decision. The lower court issued a writ ordering the city to set aside its acceptance of the officer's resignation and reinstate him to his position.

The Court of Appeal overruled the trial court, but acknowledged the provisions of POBR are not subject to a blanket waiver because POBR was established for a public purpose. Instead, the Court looked to the California Supreme Court's ruling in County of Riverside v. Superior Court (2002) 27 Cal.4th 793 and concluded a waiver of POBR rights could be permitted in certain unusual circumstances. In this case, the Court noted the officer did not waive all of his POBR rights and his waiver applied to discipline for a specific type of alleged misconduct. The Court also emphasized the original settlement was in lieu of almost certain termination.

This case primarily concerned statutory rights.  Other pre-termination rights have a federal constitutional dimension that presents additional barriers to waiver.  In Walls v. Central Contra Costa Transit Authority (9th Cir. 2011) 653 F.3d 963, the court found a public employee had not waiver his Skelly rights.  The court noted "federal courts 'indulge every reasonable presumption against waiver of fundamental constitutional rights' and 'do not presume acquiescence in the loss of fundamental rights.'" The court therefore concluded "a waiver [of the right to a pre-termination hearing] should not be implied and should not be lightly found."

NLRB: Facebook Post Was Protected Activity

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.

9th Circuit: Felony Charges Alone Do Not Justify Peace Officers' Suspension Without Pay

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (Aug. 12, 2011, 08-56283) 2011 WL 3524129, the Ninth Circuit Court of Appeals found the County of Los Angeles violated peace officers’ constitutional rights by denying them a meaningful appeal of suspensions without pay. The Court found the mere fact an officer is charged with a felony is not enough to justify unpaid suspensions. Instead, a peace officer should be permitted a post-suspension appeal to challenge whether the charges are supported by valid allegations and to determine if the particular felony allegations against a suspended deputy justify suspension.

The case arose after four deputy sheriffs were charged with felonies and suspended without pay. The charges against some of them were later dropped and the others were exonerated by juries. The deputies challenged their suspensions and sought back pay, but the County refused, arguing unpaid suspensions were proper because felony charges, whether supported by valid allegations or not, were pending at the time of the suspensions. The deputies appealed, arguing they were entitled to challenge more than just the mere fact they had been charged with felonies.

Normally, peace officers are entitled to challenge discipline before it is implemented. However, courts look at felony charges somewhat differently than other types of alleged misconduct because whenever there are felony charges an independent third party has determined there is probable cause to believe the employee committed a serious crime. As a result, some courts have held employees who occupy positions of public trust and high visibility, such as peace officers, can be temporarily suspended without pre-suspension due process if felony charges are filed against them.

However, even though pre-suspension hearings may not be required under some circumstances, meaningful post-suspension hearings are required. The dispute in this case was about what the deputies had a right to challenge in their post-suspension appeal.

The County argued it did not have to let the officers challenge the basis for the felony charges because merely being charged with a felony meant the deputies could not do their jobs. The County relied on a rule allowing it to suspend employees based on a “condition which impairs an employee's qualifications for his or her position.” The Court, however, rejected this claim noting “nowhere does the rule state that a felony charge is necessarily such a ‘condition’—indeed, the rule does not mention felonies or felony charges at all.”

The Court therefore concluded the County “rendered the post-suspension hearings redundant and meaningless [and this kind of] “meaningless hearing is no hearing at all, and does not satisfy the requirements of procedural due process.”

9th Circuit: Last Chance Agreement Did Not Waive Right to Skelly Hearing

In Walls v. Central Contra Costa Transit Authority (9th Cir., Aug. 3, 2011, 10-15967) 2011 WL 3319442, the Ninth Circuit ruled a public employee’s Last Chance Agreement did not waive his right to a pre-termination (Skelly) hearing. Some employers use Last Chance Agreements to discipline employees and give them a “last chance.” Such agreements usually contain a provision which states if the employee violates any condition of employment, such as coming in to work late or missing a day without calling in, the employee can be terminated.

In this case, the Last Chance Agreement read in part, “non-compliance with the stipulations [of the Last Chance Agreement] will result in your immediate and final termination.” After agreeing to the Last Chance Agreement, the employee allegedly had an unexcused absence from work. The employer then moved to terminate him and did not give him a pre-termination hearing, claiming the Last Chance Agreement rendered the employee “at will,” meaning he could be terminated without just cause and the normal procedural protections that go along with it.

The Court rejected the employer’s claim. The Court recognized public employees have a property interest in their continued employment and must be provided with notice of the charges against them, an explanation of the employer's evidence, and an opportunity to present their side of the story. In reaching its conclusion, the Court examined the Last Chance Agreement and concluded “[it] specifies and modifies what constitutes “just cause” for [] termination, [but] it does not otherwise alter the employment terms of [the employee’s] collective bargaining agreement [and] accordingly, there is no basis on which to conclude that he had become an at-will employee.”

Supreme Court Rejects Police Chief's Retaliation Claims

The U. S. Supreme Court reversed the Third Circuit Court of Appeals in holding that retaliation claims brought under the petition clause of the First Amendment must relate to a matter of public concern to liability. Borough of Duryea, Pa. v. Guarnieri (June 20, 2011) 2011 WL 2437008.

Chief Guarnieri successfully grieved his termination through the applicable collective bargaining agreement.  After being awarded reinstatement, the governing body issued eleven directives controlling the manner in which he performed his duties.  The Chief filed the second grievance challenging the directives and obtained another favorable arbitration award instructing the agency to withdraw or modify certain directives on grounds, including that they interfered with the delegation of authority, they violated the collective bargaining agreement, and were vague.

Chief Guarnieri then proceeded to bring a Federal action against the governing body and certain of its members under section 1983 based upon his allegation that the directives constituted retaliation for the filing of his initial grievance.  Perhaps, in light of the recent Supreme Court ruling limiting the First Amendment speech protections of public employees (Garcetti v. Ceballos), Guarnieri brought his claims under the Petition Clause, rather than the speech clause, of the First Amendment.  The Petition Clause protects the right “to petition the government for a redress of grievances.”  He also added claims for retaliation based upon denial of overtime payments.  Guarnieri prevailed in the District Court, as the jury awarded approximately $142,000.00 in damages and fees.  The defendants unsuccessfully appealed to the Third Circuit, arguing that Guarnieri’s grievances did not involve matters of public concern and, therefore, should be afforded no First Amendment protection. In upholding the jury verdict, the Third Circuit stated, “A public employee who has petitioned the government for a formal mechanism, such as the filing of a lawsuit or grievance, is protected under the petition clause from retaliation for that activity, even if the petition concerns a matter of “solely private concern.”  The defendant appealed and Supreme Court granted review.

The Supreme Court, in an opinion authored by Justice Anthony Kennedy, held that a public employee must show that his speech related to a matter of public concern in order for the protections of the petition clause to apply.  In so doing, the Court, essentially applied the standards set forth in Garcetti v. Ceballos to Petition Clause claims.  Garcetti had held that, in order to prevail on a First Amendment retaliation claim, a public employee must show that the speech involved matter of public concern, in that the speech was not part of the employee’s official duties. Guarnieri had unsuccessfully argued that the public concern requirement did not apply to the petition clause-based claims.  Justice Kennedy explained the rationale for his decision by asserting that public employees must accept certain limitations on their freedom, and that the public concern requirement is intended to protect the government’s interest.  The Court noted that applying a different standard to petition clause claims would allow public employees to circumvent the protections the Court had afforded to governmental interests in Garcetti.  The Court’s opinion did elaborate on the definition of “public concern” in suggesting that it related matters such as communication to the public or advancing a political or social point of view beyond the employment context.  The Court held that “a complaint about a change in the employee’s own duties does not constitute a petition involving the a matter of public concern.”

The Supreme Court’s decision further limits the scope of constitutional protection afforded to public employees under the first amendment.  However, this case involved claims under the United States Constitution, not state or federal labor law.  In California, it remains unlawful under the Meyers-Milias-Brown Act for a local government agency to interfere with or retaliate against represented public employees for pursuing a grievance process or other concerted activity such as arbitration. Further, under Government Code section 3304(a) of the Public Safety Officers Procedural Bill of Rights Act, “no public safety officer shall be subject to punitive action, or denied the motion, or be threatened by any such treatment because of ... the exercise of any rights under any existing administrative grievance procedure.”

Court: POBR Guarantees Right to See Complaints, Not Just Summaries

 In Matthew Medina v. State of California, Kasey C. Clark, Chief Counsel for the California Statewide Law Enforcement Association (CSLEA), scored a major victory for peace officers statewide.  The Superior Court case establishes POBR gives officers access to actual complaints against them, not just summaries or abstracts.  Prior to the Court's decision, some law enforcement departments refused to provide officers with actual complaints, providing instead brisk summaries which sanitized complaints often littered with anti-officer rhetoric and personal biases.

In its ruling, the Court stated unambiguously "the right to read the adverse comment [in a personnel file] requires disclosure of the actual adverse comments [] not merely the general nature of the comments." The ruling affirms Sacramento Police Officers Association v. Venegas, the leading case in the Court of Appeal to address peace officers' right of access to their personnel files.  Importantly, the Medina decision joined Venegas in recognizing "some might view a shield of confidentiality as a license to make false allegations of police misconduct."