Hearing Officers Must Exercise Independent Judgment When Reviewing Discipline Cases

The California Court of Appeal in Quintanar v. County of Riverside held that hearing officers must exercise their independent judgment when reviewing department discipline.

Quintanar is a Deputy in the Riverside County Sheriff's Department. The Department demoted Quintanar after he allegedly used excessive force. Pursuant to the procedures outlined in the MOU, Quintanar filed an administrative appeal which triggered a hearing before an impartial hearing officer. The MOU gave the hearing officer broad review powers. This included the ability to hold a full-scale evidentiary hearing where the hearing officer had to issue findings of fact and conclusions of law. Crucially, the MOU allowed the hearing officer to sustain, modify, or rescind the department imposed discipline.

The Court of Appeal concluded the MOU required the hearing officer to use his independent judgment in reviewing the discipline. The court seized on the broad hearing power and the ability to modify the discipline to justify its holding. While the hearing officer could consider the department's discipline as evidence, the hearing officer was not bound by those recommendations.

Many MOUs across the state contain similar language to the provisions in this case. In most cases, the MOU will not explicitly require the hearing officer to exercise independent judgment. However, if the MOU allows the hearing officer to "sustain, modify, or rescind" the department's discipline or if it allows the hearing officer to submit findings of fact or conclusions of law, courts may now require the hearing officer to exercise his or her independent judgment in reviewing the discipline.

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 Issues Injunction, Statement of Decision Affirming Constitutional Protection For Pensions

In May, the Monterey Superior Court overturned a voter initiative that tried to impair police officers' pensions.  The judge in that case, Pacific Grove Police Officers Association et al. v. City of Pacific Grove, has now issued a permanent injunction and statement of decision.  The injunction prohibits the city from "taking any action to implement, enforce, or give any effect" to the initiative.

The statement of decision explains the Court's ruling.  The Court explained the initiative violated the California Constitution by capping the City's contribution toward police officers' pensions.  "The employees were told that they were to receive retirement benefits under a CalPERS administered plan with an employee cost set at a fixed percentage of their salary.  The fluctuating portion would be borne by the employer."  The City violated the constitutional prohibition on impairment of contracts by effectively flipping those roles.

The Court stressed employees' vested rights.  The Court said, "the Court reiterates that what is vested in the employee is the right to earn a pension on the terms promised to him or her upon employment."  As a result, "no subsequent legislation by the city, whether by Charter amendment, ordinance, or Council resolution, or voter initiative, can take these rights away once given..."

The Court also explained officers' pensions could not be decided by initiative and therefore the "Citizen's Initiative is invalid because it delegates the responsibility of the ultimate decision for fixing compensation to the voters."  The Court said under the city's Charter, which mirrored the general law, the city council had to set all compensation.

The Pacific Grove Police Officers Association and Police Management Association were represented by Mastagni Law attorney Jeffrey R. A. Edwards in the matter.

Court: No Right to Pre-Interview Access to IA File

In Association of Orange County Deputy Sheriffs v. County of Orange, (June 12, 2013) G047167, the Court of Appeal ruled the County did not have to meet and confer with the DSA before it banned deputies from reviewing IA files before their IA interviews.  In Orange County, there was a longstanding practice where peace officers being IA'd could review the IA file before their interview.  Then, in 2011, the Sheriff banned anyone under investigation from reviewing the file before their IA interview.  The DSA sued, arguing the County had to meet and confer before making this kind of change to a past practice.

The Court decided the County did not have to meet and confer of this kind of a change to a past practice.  The Court reasoned that restricting access to IA files before the IA interview is not a "working condition" under the MMBA.  The Court looked to two other cases in reaching its conclusion.  In Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the California Supreme Court ruled employers do not have to give officers pre-interview discovery.  Similarly, in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the court ruled law enforcement agencies can ban so-called "huddling" between counsel and officers after critical incidents.  In this case, the Court said pre-interview access to an IA file was like pre-interview discovery and the no "huddling" rule.  As a result, the Court decided it is not a "working condition."

The Court did agree the meet and confer requirement extends to changes in existing and acknowledged past practices, even if they are not formalized in a written agreement or rule.  However, the Court decided agencies only have to meet and confer if the past practice counts as wages, hours, or terms and conditions of employment.  Since the Court decided pre-interview access to the IA file did not count as a working condition under the MMBA, it ruled meet and confer rules did not apply.  Still, the Court left the door open to associations and agencies including these requirements in their MOUs if they chose to.

California Court Uphold Employees' Right To Vacation Pay On Termination

California Labor Code section 227.3 requires employers immediately pay a terminated employee for all his vested vacation time. In Howard Choate et al., v. Celite Corporation (May 2, 2013) B239160, the Court of Appeal decided the right provided in section 227.3 can only be waived if a negotiated collective bargaining agreement clearly and unmistakably waves that right.

Under their collective bargaining agreement, Plaintiffs in Howard earned their vacation based on hours worked the previous year and there was no waiver of section 227.3. However here was no past practice of paying out next year’s vacation time. Until the lawsuit, neither the terminated employees nor their union had objected to this practice. The court found the parties' past practice of not enforcing the vacation rule did not count as a clear and unmistakable waver of section 227.3. Therefore, the Court said the Plaintiffs were entitled to be paid for time earned. However, the court did not grant special penalties to Plaintiffs because it said the employer did not act “willfully”.

Court Rules City Employee Has Vested Right to Sick Leave Cashout

In Lorie Deisenroth v. City of San Jose, the Santa Clara County Superior Court ruled an employee had a vested right to sick leave cashout once she retired and therefore "the City could not unilaterally eliminate her right to a payout for sick leave hours."

The City claimed it could change the rules for sick leave cashout after the employee banked the sick leave hours because ti hadn't paid the cashout yet.  The Court rejected that claim, deciding the right to a sick leave cashout vested after 15 years of service under the employee's MOU, even though the cash out did not mature until the employee retired.  The Court explained "the 'vesting' of a benefit must be distinguished from the 'maturing' of those benefits, which occurs after the conditions precedent to the payment of the benefits have taken place..."  As a result, the Court found that sick leave cashout is a form of deferred compensation and retroactive revocation of that right would be unjust and inequitable.

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.

Lawsuits Filed to Stop Attacks on Retirement Security

Legal challenges are already underway to local pension initiatives passed by voters Tuesday in San Diego and San Jose.  The initiatives, both named "Measure B", attack public employees' pensions in those cities.

San Diego's Measure B creates a new retirement tier replacing defined benefits with a 401(k) and lowers public safety's maximum retirement benefit to 80% of salary.  The measure also caps city payroll at 2011 for five years, risking massive layoffs for the city.  

The legal challenge to the San Diego measure started even before the election.  Unions filed an unfair practice charge with PERB in February because city leaders refused to meet and confer about the changes.  PERB quickly granted their request for injunctive relief and filed a lawsuit in San Diego to stop the measure from going before voters.  While the court initially ruled against PERB, the case was promptly appealed and oral arguments are scheduled for June 13, 2012.  PERB also issued a complaint against the city.

The San Jose measure seeks to shift the city's contributions to the pension system to employees, likely 16% of their salaries.  It also provides that if the cost-shifting provision is struck down, as many expect it will be, the city can dramatically slash salaries to make up the difference.  The plan also limits disability retirements, lets the city council take away retirees' cost-of-living-adjustments, and prices retirees out of the city health insurance plan.

San Jose police and firefighters immediately filed lawsuits in state court to stop enforcement of the measure.  The firefighters lawsuit, Robert Sapien et al. v. City of San Jose et al. seeks declaratory and injunctive relief and a writ of mandate prohibiting enforcement of Measure B.  It argues the measure violates California state constitutional protections related to due process, the prohibition on breaking public contracts, and restrictions on seizing property.  The POA's lawsuit, San Jose Police Officers' Association v. City of San Jose et al. makes similar claims and also alleges violations of freedom of speech, separation of powers, the MMBA, the parties' MOU, and the California Pension Protection Act.  The City of San Jose also filed a preemptive lawsuit in federal court seeking a declaration that the measure is not unconstitutional.

Crime Victims, Deputies Join Forces Against El Dorado Sheriff's Blanket Rotational Policy

Crime Victims United of California and the El Dorado County Deputy Sheriffs' Association joined forces at a press conference Tuesday to protest El Dorado Sheriff John D'Agostini for putting the public in danger by shifting experienced detectives out of the investigations unit.

In a press release, the DSA expressed "grave concerns" that "Sheriff D’Agostini’s new rotational policy on detective positions will undermine the department’s ability to successfully investigate cases and bring justice to victims and their families." DSA President Todd Crawford noted "Our department had a rotational detective policy before,” but had "over 40 unsolved homicides" under that policy.

CVUC echoed the DSA's concerns, expressing "outrage Sheriff D’Agostini has chosen to risk the public safety of the Citizens of El Dorado County" with the policy change.  CVUC's press release also announced "Crime Victims United stands with the men and women of the El Dorado County Deputy Sheriffs’ Association" on the issue.

News outlets throughout Northern California covered the press conference, including the Modesto Bee, KCRA, the Sacramento Bee, and CBS13.  According to news reports, the policy "is a move victims say will hurt victims who have already suffered enough."

The DSA has filed a grievance over the unilateral policy change.  Mastagni Law attorneys David E. Mastagni and  BJ Pierce represents the DSA in the matter.  Follow updates to this story by subscribing to the California Public Safety Labor Blog.

Watch the news video here.

Court Rejects "Fiscal Emergency" Reopener, Upholds Stockton POA's Right to Enforce Contract

In a closely-watched case with national implications, the San Joaquin Superior Court dismissed the City of Stockton's claim it could unilaterally reopen a closed contract.  In Stockton Police Officers' Association et al. v. City of Stockton et al., the City claimed it could force the Stockton Police Officers' Association to reopen a closed contract and renegotiate because the City declared so-called "fiscal emergency."

The Court rejected the City's claims, finding the union "was not required to accept the City's invitation to discuss or renegotiate the terms of a closed contract, notwithstanding the City's declaration of fiscal emergency" and "was within its right to refuse" to reopen its contract, dismissing the City's claim.

The City of Stockton's claims are part of an emerging trend by some public sector management firms to try to expand the definition of "emergency" and create a new tool for public agencies seeking to get out of contractual obligations. Tellingly, however, the Court noted the City "has not identified any contractual or statutory basis for its claim that SPOA must meet and confer, bargain, or renegotiate a closed labor agreement."

Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the matter. The case was previously profiled by Fox News commentator Tom Sullivan.

Neutral Fact-finding Now Required Before Public Agencies Can Impose on Employees

Governor Brown strengthened collective bargaining rights for local public employees by signing A.B. 646 which establishes new minimum impasse procedures for contract negotiation. Prior to this enactment, public employers could declare impasse and impose terms and conditions on employees with few safeguards. In the current economic climate, management negotiators and representatives often hurry to reach impasse and impose cuts on employees, despite their statutory obligation to meet and confer in good faith. Meeting and conferring in good faith does not require agreement, but does require that the parties endeavor to reach agreement and share information.

A.B. 646 will facilitate good faith negotiations by providing for fact-finding, essentially a form of non-binding interest arbitration. The new process will reduce the incentive for agencies to go through the motions of negotiations with a pre-determined intent to declare impasse and impose terms by requiring both parties to justify their positions, share information, and providing for findings and recommendations. Fact-finding is intended to move the parties toward agreement, but also provides a valuable tool to illuminate bad faith bargaining.

The bill provides that if a mediator is unable to resolve the negotiations impasse after 30 days, the employee representative may initiate fact-finding. Within 5 days of the request for fact-finding, each party must select a panel member and PERB selects a panel chairperson. Within 10 days after its appointment, the panel is to meet with the parties, make inquiries and investigations, hold hearings, and take any other necessary steps. It has the power to issue subpoenas to compel testimony and production of evidence. Public employers are required to provide the panel all records, papers, and information relevant to the investigation.

The fact-finding panel then issues findings and recommendations which consider:
1) the application of laws to the employer;
2) local rules and regulations;
3) stipulations of the parties;
4) the public and employers finances;
5) comparables (compensation and working conditions in comparable agencies);
6) the consumer price index;
7) current overall compensation; and
8) any other facts traditionally taken into consideration in fact findings.

The fact-finding panel must make written findings of fact and recommendations of settlement that are advisory only. The cost of the process is bourne equally between the parties. If the agency’s Charter does not require proceeding to interest arbitration, the employer may then impose its last, best, final offer. The employer may not impose a Memorandum of Understanding, and remains obligated to meet and confer with the employee representative each year on matters within the scope of representation, regardless of whether the imposed terms cover those matters.

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.”

California Supreme Court to Hear Challenge to City's Purported Fiscal Emergency

The California Supreme Court recently depublished City of Los Angeles v. Superior Court (Engineers and Architects Association) (2011) 193 Cal.App.4th 1159, and granted review.  The decision of our Supreme Court to grant review appears to reflect a greater willingness of the courts to provide judicial oversight of local bureaucrats attempting break contractual obligations by declaring fiscal emergencies, rather than negotiate concessions or seek bankruptcy protection.

Some prominent law firms representing public agencies have been advocating that the Los Angeles case supported their contention that agencies can suspend MOUs merely by declaring fiscal emergencies and that the resulting contract violations could not be arbitrated because declarations of emergency are not subject to review, and that more cities should declare emergencies to avoid contractual obligations.   These firms contend that review of cities' declarations of emergency and suspension of MOU terms is an improper delegation of cities' salary setting and budget making powers.  Under this rationale, cities' would not need Chapter 9 bankruptcy, because they could avoid court oversight of their true financial situation and any reorganization plan by suspending contractual obligations at their discretion.

This expansive reading of the Los Angeles case conflicts with Prof'l Engineers in Cal. Gov't v. Schwarzenegger (2010) 50 Cal.4th 989, 1043, where in our Supreme Court held the establishment of an emergency does not provide any substantive power to take an action not already authorized, but only avoids meet and confer obligations.   The Supreme Court will likely address the ability of local agencies to suspend their contractual obligations through misuse of emergency declarations in this case.