Governor Brown Vetoes PORAC Endorsed Bill Allowing Peace Officers to File Unfair Practices with PERB

On October 14, 2017, the Governor vetoed A.B. 530, a Bill introduced by Jim Cooper to provide Penal Code 830.1 peace officers access to PERB.  Mastagni Holstedt assisted in the drafting of this PORAC supported this Bill and both David E. Mastagni and Kathleen Storm testified in favor of the Bill extending PERB's jurisdiction to all peace officers while preserving their ability to seek injunctive relief in court.

PERB possesses expertise in enforcing the MMBA and affords other local public employees access to a cost-effective administrative process to  enforce their bargaining and representational rights.  In light of the prohibition against peace officers engaging in certain job actions in response to unfair practices, A.B. 530 also authorized all peace officers to "seek injunctive relief or a writ of mandamus to preserve the status quo or prevent irreparable harm pending a final determination by the board on any issue upon which a court has not made a ruling."  Currently, non-830.1 peace officer unions may obtain similar injunctive relief, but only if PERB agrees to bring such an action.

Unfortunately, the Governor denied 830.1 peace officers access to PERB by vetoing the Bill.  He explained his veto as follows: "I am returning Assembly Bill 530 without my signature. This bill authorizes peace officers to bring unfair practice charges to the Public Employment Relations Board while preserving their existing right to directly petition a superior court for injunctive relief. No other group has both of these rights and I’m unconvinced that providing such a unique procedure is warranted."

Governor Reviews Bills Favorable to Public Employees

Governor Jerry Brown has two bills on his desk that, if signed into law, will be favorable to public employees. The first bill amends the California Fair Pay Act to include race and ethnicity. The second bill mandates public employers allow employee associations to participate in employee orientations.

AB 1676: California Fair Pay Act Amendment

The California Fair Pay Act prohibits employers from paying an employee at wage rates less than the rates paid to employees of the opposite sex for similar work. Employers in violation of this law can be charged with a misdemeanor. AB 1676 amends the California Fair Pay Act to include race and ethnicity. In addition, this bill prohibits employers from using an employee's prior salary, by itself, to justify any pay disparity.

This bill has been passed by both houses and is under Governor Brown's review.

AB 2835:  "Union Recruiting" Bill

AB 2835 provides that public employers must provide new employees with an orientation within four months of hiring. If the employees are represented by an employee association, the association must be permitted to make a 30-minute presentation in the first half of the orientation. The association must be given at least 10-days notice of the orientation, and the association must be provided new employee's name, telephone number, and home address within 30 days of hire. PERB is granted authority to enforce these requirements.

This bill originated while Friedrichs v. California Teachers Association was being decided. Friedrichs threatened employee association's access to agency fees in the public sector. This bill was introduced to allow employee associations an opportunity to make a presentation to new employees to share with them the benefits of joining the association. If signed into law, this bill will help strengthen membership in public employee associations.

Brown Signs Bill to Stop Scapegoating of Collective Bargaining

Last Friday, Governor Brown signed SB 331, the "Civic Reporting Openness in Negotiations Efficiency Act".  Legislators introduced the Act after some local governments adopted policies targeting labor negotiations, while keeping negotiations with city managers and outside contractors secret. These ordinances typically required information about pending collective bargaining be released to the public even before tentative agreements were reached. Many observers have been concerned these policies, while pitched as promoting transparency, were designed to prevent effective collective bargaining and obscure controversial management compensation and risky outside contractor spending.

Now, under the Act, local governments that claim to be concerned about transparency in contract negotiations cannot only target labor groups, but must apply the same rules equally to all contract negotiations.  Under the Act, any local government that has adopted a such an ordinance must also report on contracts made with private entities. A public agency must have an independent auditor report on the cost of any proposed contract, disclose all offers and counter offers, and approve the contract in open session. The bill states these procedures give the public a meaningful opportunity to participate in approving contractions.

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 Signs Bill Setting Standards for Use of Police Body Cameras

On October 3rd, Governor Jerry Brown signed into law Assembly Bill 69 by Assemblyman Freddie Rodriguez (D-Pomona).  Law enforcement agencies requiring their officers to wear body cameras must now comply with a uniform set of standards.

Currently there is no state requirement that law enforcement agencies adopt body cameras for their officers in the field. However, many local agencies have either adopted such a policy or are likely to do so in the near future. AB 69 is meant to prevent the development of a patchwork quilt of rules across the state. It sets statewide standards for the use of police body cameras.

In November 2014 a study by the U.S. Department of Justice titled, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” recommended standards be adopted for the use of body cameras. AB 69 seeks to implement those recommendations by requiring:

• Agency procedures on data collection and storage must follow “best practices”;
• Agency rules must explicitly prohibit agency personnel from accessing recorded data for any unauthorized or personal use, and from uploading recorded data onto the Internet;
•  Agency rules must provide sanctions for unauthorized access or use of recorded data;
• Supervisors must immediately take custody of officers’ cameras after a use of force incident or officer involved shooting, and must be responsible for downloading the data;
• Data must be categorized according to the type of event recorded;
• “Non-evidentiary” data (data that does not necessarily have value to aid in an investigation or prosecution) must be retained for a minimum of 60 days;
• “Evidentiary” data must be retained for a minimum of 2 years (and longer if relevant to a criminal prosecution) in any of the following situations:
• Use of force incident or officer involved shooting;
• Detention or arrest of an individual;
• Formal or informal complaint against the officer or agency.

• Logs of access and data deletion must be retained permanently;
• Third party vendors used for data storage must be reputable and have procedures in place to prevent tampering, provide for automatic data backup, and meet legal requirements for chain-of-custody concerns.

Law enforcement agencies will need to update their policies on body cameras to conform to these new requirements. Peace officer associations should make sure their members are made aware of all rules about body cameras and recorded data to prevent any causes for discipline. Also, associations should negotiate with agencies about an officer’s right to view data recorded from body cameras, which is not addressed by AB 69 but raises POBR concerns.

AB 69 faced almost no opposition as it moved through the Legislature, receiving only one “no” vote and receiving no public opposition. It goes into effect January 1, 2016.

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.

AB 76 Guts Local Labor Associations' Access to Public Records

AB 76 makes key provisions of the California Public Records Act optional for local governments.  Among the provisions that would be optional under the new law are the requirements local agencies respond to public records requests within 10 days and provide requestor’s with electronic versions of public records.  These provisions are critical to labor associations who need prompt responses to public records requests, especially during contract negotiations.  The Assembly and Senate passed the bill, which contains other provisions related to the budget.  It is currently on the Governor’s desk awaiting signature. 

Since the provisions received significant attention earlier this week, Assembly Speaker John Perez promised to pass a replacement bill that leave the Public Records Act intact.  However, it looks like the State Senate will not act on his replacement bill.  Senate President Pro Tem Darryl Steinberg announced today the Senate won’t take up Perez’s bill, noting the changes to the Public Records Act are designed to save money, not stifle access to records.  That’s because if the provisions are mandatory, the State has to reimburse local governments for compliance, but if its optional, the State doesn’t have to reimburse them.  While local labor associations have other access to records under the MMBA and state labor laws, unlike the MMBA, the CPRA has a powerful enforcement mechanism giving associations teeth when they have to force an employer to turn over public records.

Governor Brown Signs Password Protection Law

On September 27, 2012, Governor Brown signed AB 1844 to will protect employees’ social media usernames and passwords. This law will make California the third state in the country, after Maryland and Illinois, to protect employees in this way. Once the law goes into effect, it will be illegal for an employer to request an employee’s online account information, be it email, Facebook, or otherwise.

For the employers who decide to ignore the law and still ask for passwords, the new bill will make it illegal for the employer to take any action against an employee who refuses to give access to social networking accounts. The California law does include some special rules for when an employer may legally demand social media information. The first is for investigations. If an employee is accused of a crime or other misconduct, the employer can demand access to email or social media content if it is relevant to the investigation. The second is for electronic devices the employer provides.

If an employer gives you a computer or phone for work use, they can demand your passwords for access to those devices. This appears to be sparking a wave of workers’ rights legislation. The New Jersey legislature has already passed a similar law, and it waits for Governor Christie’s approval. A bill currently called the Password Protection Act of 2012 is also gaining traction in Congress, so we may soon have a national standard for internet privacy rights in the workplace.

Brown, Legislature Announce Sweeping Pension Deal

Governor Jerry Brown and legislative leaders announced a sweeping pension deal that, if passed, would dramatically reshape public-sector pensions in California.  The so-called Public Employee Pension Reform Act of 2012 would eliminate 3 @ 50, introduce a 2.7 @ 57 formula for public safety, require employees to pay more of their salaries into pension funds and require new caps on pensionable salaries.  Several elements of the proposal are facing stiff criticism from labor.  For example, the pensionable salary component is a cap on  how much of a salary counts for credit, not a cap on pension benefits, penalizing people with high compensation, but low service credit.

According to the Governor, "If the Legislature approves these reforms, public retirement benefits will be lower than when I took office in 1975."  The Governor's Office put out the following summary of the deal:

Public Employee Pension Reform Act of 2012

Caps Pensionable Salaries

·         Caps pensionable salaries at the Social Security contribution and wage base of $110,100 (or 120 percent of that amount for employees not covered by Social Security).

Establishes Equal Sharing of Pension Costs as the Standard

·         California state employees are leading the way and are paying for at least 50 percent of normal costs of their pension benefits. Requires new employees to contribute at least half of normal costs, and sets a similar target for current employees, subject to bargaining.

·         Eliminates current restrictions that impede local employers from having their employees help pay for pension liabilities.

·         Permits employers to develop plans that are lower cost and lower risk if certified by the system’s actuary and approved by the legislature.

·         Provides additional authority to local employers to require employees to pay for a greater share of pension costs through impasse proceedings if they are unsuccessful in achieving the goal of 50-50 cost sharing in 5 years.

·         Directs state savings from cost sharing toward additional payments to reduce the state’s unfunded liability.

Unilaterally Rolls Back Retirement Ages and Formulas

·         Increases retirement ages by two years or more for all new public employees.

·         Rolls back the unsustainable retirement benefit increases granted in 1999 and reduces the benefits below the levels in effect for decades.

·         Eliminates all 3 percent formulas going forward.

·         For local miscellaneous employees: 2.5 percent at 55 changes to 2 percent at 62; with a maximum of 2.5 percent at 67.

·         For local fire and police employees: 3 percent at 50 changes to 2.7 percent at 57.

·         Establishes consistent formulas for all new employees going forward.

Ends Abuses

·         Requires three-year final compensation to stop spiking for all new employees.

·         Calculates benefits based on regular, recurring pay to stop spiking for all new employees.

·         Limits post-retirement employment for all employees.

·         Felons will forfeit pension benefits.

·         Prohibits retroactive pension increases for all employees.

·         Prohibits pension holidays for all employees and employers.

·         Prohibits purchases of service credit for all employees.

Court Awards Millions in Back Pay for Furloughs

In Professional Engineers in California Government, et al. v. Edmund G. Brown, Jr. et al., Case No. R610-494800, the Alameda County Superior Court awarded back pay to state workers unlawfully furloughed in 2009 and 2010.  The Court's June 7, 2012 ruling found that employees whose positions were not funded by the state budget act could not be furloughed by the act.

The Court's ruling also focused on the "single subject rule", part of the California Constitution that prohibits budget bills from changing substantive law in other areas.  As a result, the Court concluded the furloughs were unlawful for some state workers whose responsibilities were protected by specific sections of the Water and Health & Safety Codes.

Finally, the Court discussed a requirement in the budget act that furloughs to line staff be proportional to furloughs for managers.  The Court decided the requirement means that the state went too far when in furloughed line staff more than managers, entitling workers to back pay to make up the difference.  The parties expect the the ruling to cost the state millions of dollars in back pay.

California Supreme Court Upholds Abolition of Redevelopment Agencies

In an opinion sure to have state-wide impact on the nearly 400 existing redevelopment agencies, the California Supreme Court held, “Redevelopment agencies ... do not have protected right to exist that immunizes them from statutory dissolution by the legislature.”  The ruling in California Redevelopment Assn. v. Matosantos (Cal., Dec. 29, 2011, S194861) 2011 WL 6822391, has broad implications for for public safety services.  Redevelopment agencies had been used to siphon local revenue away from core services, such as law enforcement and fire protection, but Thursday’s ruling makes it much more difficult for cities and counties to continue the practice.

The Court ruled on two state laws addressing so-called “Redevelopment Agencies.”  The Court held, “Assembly Bill 1X26, the Dissolution Measure, is a proper exercise of the legislative power vested in the legislature by the State Constitution.”  The Court explained that the power to create entities such as redevelopment agencies carried with it the corollary power to dissolve those entities.  However, the Court invalidated the measure’ companion bill, A.B. 1X27, which conditioned further redevelopment agency operations on additional payments by the agencies’ community sponsors to state funds benefitting schools and special districts.  The Court found this mandate violated Proposition 22, which amended the Constitution to prevent the state from redirecting redevelopment funds.

The opinion also chronicles how community redevelopment agencies, formed to combat urban decay, developed into the principal instrument of economic development for most cities.  These agencies principally acquire and transfer property on favorable terms for residential or commercial development.  Unable to levy taxes, the agencies rely on tax increment financing, whereby the property tax revenues for government entities other than the redevelopment agency are frozen, while revenues from any increase in values are awarded to the redevelopment agency on the theory that the increase is the result of redevelopment. The tax increment financing has, “sometimes been misused to subsidize the city’s economic development through the diversion of property tax revenue for other tax entities.”  The agencies are used to shield property tax revenue from other governmental agencies and create a shell game amongst local governments with respect to property tax funds.

The tax increment financing is a hot political issue because of the arguable unfair advantage it provides cities over school districts and local taxing agencies, and the loss of revenue to the state’s general fund.  While Governor Brown considered eliminating redevelopment agencies altogether as a partial mean of closing the state’s projected budget deficit, the legislation enacted “freezes” conditions by placing restrictions on modification of existing plans and barring creation of new agencies.  The legislation was intended to preserve redevelopment assets and revenues to fund core local services, i.e. public safety and education.  The dissolution component transfers control of redevelopment agency assets to the local public entity that created the agency and requires performance of existing obligations.  The Court invalidated the provision that created an exemption for agencies that agreed to make specified payments to other governmental funds.

Full Disclosure Network Profiles ASA-DOJ Lawsuit

On Sunday, December 11, 2011, the Full Disclosure Network released a profile of the lawsuit filed by the Association of Special Agents- Department of Justice.  The lawsuit challenges budget cuts that defunded of the DOJ’s Bureau of Narcotic Enforcement (BNE) and Bureau of Intelligence and Investigations (BII).  Mastagni Law attorneys David P. Mastagni, David E. Mastagni and Isaac S. Stevens represent ASA-DOJ in the action.

DOJ Special Agents Sue to Stop Budget Cuts

The Association of Special Agents - Department of Justice filed a Verified Petition for Writ of Mandamus and Complaint to stop the state from laying off approximately 200 special agents.  The layoffs threaten to close over two thirds of BNE task forces.  According to the petition, the layoffs are an infringement of the Attorney General's constitutional and statutory authority to determine the DOJ's functions and allocate resources within the Department.  The complaint seeks injunctive and declaratory relief.  Mastagni Law attorneys David P. Mastagni, David E. Mastagni and Isaac S. Stevens represent ASA-DOJ in the action.

Governor Releases "Twelve Point Pension Reform Plan"

On October 27, 2011, Governor Edmund G. Brown Jr. released his 12 proposed major reforms for state and local pension systems. The governor stated the proposals “would end system-wide abuses and reduce taxpayer costs by billions of dollars over the long term” and cut in half the cost to tax payers of state employee pensions.

The “Twelve Point Pension Reform Plan” and its explanation are set forth as follows:

1. Equal Sharing of Pension Costs: All Employees and Employers: Will require that all new and current employees transition to a contribution level of at least 50 percent of the annual cost of their pension benefits.

2. “Hybrid” Risk-Sharing Pension Plan: New Employees: The “hybrid” plan will include a reduced defined benefit component and a defined contribution component. The hybrid plan will be combined with Social Security to provide an annual retirement benefit of about 75 percent of an employee’s salary. The 75 percent target is based on 30 years for safety employees and 35 years for non-safety.

3. Increase Retirement Ages: New Employees: For most new employees, retirement ages will be set at the Social Security retirement age, now 67. The retirement age for new safety employees will be less than 67, but commensurate with the ability of those employees to perform their jobs.

4. Require Three-Year Final Compensation to Stop Spiking: New Employees: Eliminates one-year rule to discourage efforts in the last year of employment to increase the compensation used to determine pension benefits.

5. Calculate Benefits Based on Regular, Recurring Pay to Stop Spiking: New Employees: Will require that compensation be defined as the normal rate of base pay, excluding special bonuses, unplanned overtime, payouts for unused vacation or sick leave, and other pay perks.

6. Limit Post-Retirement Employment: All Employees: Will limit all employees who retire from public service to working 960 hours or 120 days per year for a public employer. It also will prohibit all retired employees who serve on public boards and commissions from earning any retirement benefits for that service.

7. Felons Forfeit Pension Benefits: All Employees: Will require that public officials and employees forfeit pension and related benefits if convicted of a felony in carrying out official duties, in seeking an elected office or appointment, or in connection with obtaining salary or pension benefits.

8. Prohibit Retroactive Pension Increases: All Employees: Will eliminate unfunded liability from increased pension benefits.

9. Prohibit Pension Holidays: All Employees and Employers: Will prohibit all employers from suspending employer and/or employee contributions necessary to fund annual pension costs to avoid repeat of past where many public employers stopped making annual pension contributions during wall street boom years.

10. Prohibit Purchases of Service Credit: All Employees: Will avoid the investment risk associated with allowing purchase of service credit for time not actually worked.

11. Increase Pension Board Independence and Expertise: Will add two “independent” persons with financial expertise to the CalPERS Board and require that persons and their family are not eligible for CalPERS pension. Will also replace State Personnel Board representative on the CalPERS board with the Director of the California Department of Finance. Intended to achieve greater independence and greater sophistication.

12. Reduce Retiree Health Care Costs: State Employees: New state employees will be required to work for 15 years to become eligible any retiree health care and required to work for 25 years to become eligible for the maximum state contribution. Will encourage local governments to make similar changes.

These proposals will have to be debated and passed by the California Legislature before Governor Brown can sign them into law.

Legislative Analyst's Office, CDCR Address Realignment

In March and again in June, the Legislature passed a series of bills to shift responsibility for some services from the state to local and municipal governments. This process of realignment has far-reaching implications in local law enforcement, probation and corrections.   As part of this process, the state will begin diverting criminal offenders and parole violators to county supervision starting October 1st.

With the implementation date approaching, the Legislative Analyst's Office released a report today on the construction and mechanics of realignment as well its recommendations to improve the process.  Likewise, the California Department of Corrections and Rehabilitation launched a website yesterday to outline how realignment will impact state and local corrections, juvenile justice administration and supervision of parolees.

Brown Vetoes AB 455

Governor Jerry Brown vetoed AB 455 which would have given recognized employee organizations input in the composition of personnel commissions.  In his veto message, the governor noted that "[w]hile intended to create more balanced commissions and address concerns relating to individual commissions, this measure imposes a a top down, one-size-fits-all solution on all merit and personal commissions statewide."