New Bill Expected to Provide Peace Officers with Increased Coverage for Injuries

The tragic mass shooting in Las Vegas has affected lives across the country.  This includes over 200 California peace officers who were attending the concert.  Recently, four Orange County deputies filed workers’ comp claims after suffering injuries during the shooting.  According to Orange County officials, peace officers are entitled to benefits if injured while protecting life or property, regardless of whether on or off duty.  However, the benefits require the injury to have occurred while in the State of California.  Orange County denied the deputies’ claims because the injuries occurred in Nevada.

Tom Daley (D-Anaheim) and the Orange County deputies believe Orange County officials are not applying the law correctly, and argue the claims should be covered.  In order to prevent any further denials of claims, Assemblyman Daley is preparing legislation that would erase any ambiguity in the law.  His bill will guarantee coverage to police officers injured while protecting life or property, regardless of where the injury occurred. 

The bill is expected to be introduced in early 2018.  If the bill is successful police officers would receive the benefits of workers’ comp for injuries from engaging in the apprehension of law violators, protecting life or property, or preserving the peace.  Whether the injury occurred outside the State of California will no longer be cause to deny a claim.

California Senate Bans Grand Jury Investigations of Officer Involved Critical Incidents

On May 7, 2015, the California Senate voted to ban the use of grand juries to investigate officer involved critical incidents. Specifically, Senate Bill 227 prohibits a grand jury from inquiring into an offense or misconduct that involves a shooting or the use of excessive force by a peace officer that lead to the death of a person being detained or arrested by the peace officer.

Under current law there are two tracks a district attorney can take to file a case. Under one track, the district attorney can file a complaint in criminal court and schedule a preliminary hearing.  At the preliminary hearing the district attorney and the defense attorney present witnesses and evidence subject to cross-examination in open court. The judge then makes a determination of probable cause based on the evidence. If there is probable cause, the judge issues an information which lays the foundation for the criminal case.

The district attorney can also send the case to a grand jury. The grand jury then hears evidence presented in secret. The district attorney is allowed to present evidence favorable to his or her case without calling all relevant witnesses and without cross-examination. The grand jury decides if there is probable cause. If the grand jury dismisses the indictment, then the proceedings remain secret.

Senator Holly Mitchell, D-Los Angeles, argued the lack of transparency in the grand jury process and in grand jury deliberations has fostered an atmosphere of suspicion regarding the justice system and officer involved critical incidents. According to Senator Mitchell, requiring a district attorney to bring the case through a complaint allows the public to view the proceedings. If the public does not agree with the district attorney the public can then remove the district attorney at the next election.

The bill passed the senate on May 7 by a vote of 23-12. All of the "yes" votes came from Senate Democrats. The bill now moves to the Assembly for further review.

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.

Sen. Leiu Introduces Bill to Expand POBR

Senator Ted Leiu introduced a new bill, SB 388, the expand officers' POBR rights under state law.  Under current law, agencies must inform public safety officers of the nature of an interrogation and allow them to have a representative, but only when the officer is "under investigation."  SB 388 expands the law to cover public safety officers "subject to interrogation without being under investigation."  This change makes clear officers have a right to notice regardless of whether an IA is opened on them and helps protect witness officers' rights.

SB 388 also expands the rule that public safety officers have a right to a representative "whenever an interrogation under any circumstances focuses on matters that could lead to punitive action."  Under the old law, the right to a representative only applied when an interrogation "are likely to result in" punitive action.  The bill is currently being considered by the committees on public safety and appropriations.

Court Rules NLRB Appointments Unlawful, Calls Into Question 200 Decisions

In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional.   As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.  

The Recess Appointments Clause is part of the federal Constitution.  It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not.  Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session.  As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.

The affects of the decision on unclear.  The NLRB's official position is that the ruling only applies in one case.  However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.

Steinberg Announces Senate Public Safety Committee Members

California State Senate President pro Tem Darrell Steinberg announced today he is appointing Senator Loni Hancock (D-Berkeley) to chair the Senate Public Safety Committee.  The Senate Public Safety Committee is responsible for legislation changing criminal procedure, the Penal Code, and other criminal sanctions.  The other committee members will be Joel Anderson (R-Alpine), Marty Block (D-San Diego), Kevin de Léon (D-Los Angeles), Steve Knight (R-Antelope Valley), Carol Liu (D-Inland Empire), and Darrell Steinberg (D-Sacramento).  Sen. Hancock with also chair the budget sub-committee on Corrections, Public Safety, and the Judiciary.

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.

AB 455: Bill Adds Provision Granting Employee Organizations Input on Appointees to Personnel and Merit Commissions

The Senate and Assembly both passed a bill introduced by Assemblymember Nora Campos which would add a provision to the Meyers-Milias-Brown Act affording recognized employee organizations input in the composition of personnel commissions. AB 455 provides that where personnel commissions or merit commissions are established to administer personnel rules or the merit system, an employee organization may nominate half the commissioners. The governing body of the agency shall appoint the commissioners nominated by the employee organization as well as the other half of the commissioners that the agency has selected. The commission members then select an additional member as a chairman. The bill also states when there are multiple bargaining units represented by different recognized employee organizations, the organization which represents the largest number of employees will be the organization who nominates the commission members.

This legislation is opposed by labor law firms representing public agencies because it is considered an impediment to their agenda of eliminating promotional rules requiring a testing process and hiring from a list, as well as eliminating seniority based layoffs and bumping rights. Some agencies and their advocates seek to eliminate civil service protections to allow local government bureaucrats to make hiring, promotional and layoff decisions at their whim. California’s civil service systems were created to eliminate patronage and corruption in public employment. This law would provide an equitable balance and transparency to the commissions that have broad discretion in determining hiring and promotional process, disciplinary procedures, and other personnel guidelines. This legislation will enhance public confidence in government by guaranteeing the impartiality and independence of the commissions and the rules they administer.

AB 455 was enrolled on July 6, 2011 and as of now is waiting to be signed by the Governor.