Court Rules PC 242 Does Not Trigger Firearms Ban, Reistates Peace Officer

In Shirey v. Los Angeles County Civil Service Commission (May 6, 2013)--- Cal.Rptr.3d ---- the Court of Appeal ruled a conviction under California Penal Code section 242 does not trigger a firearms ban under the Federal Gun Control Act.

Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.

Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.

The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.

Court of Appeal: 1-year POBR Statute of Limitations Does Not Apply to Work Comp Fraud Cases

In California Department of Corrections and Rehabilitation v. State Personnel Board (April 26, 2013) 2013 WL 1777118, the Court of Appeal ruled workers' compensation fraud investigations are exempt from the one-year limitations period established in section 3304 of POBR.  The Court rejected the argument that the investigation has to be conducted by an outside agency for the exception to apply.

There are several exceptions to the 1-year statute of limitations for IAs under POBR.  The statute says the statute of limitations is tolled when the alleged "misconduct is also the subject of a criminal investigation or criminal prosecution," when the officer waives the statute of limitations, if the investigation is multi-jurisdictional and reasonable extension is required, if multiple officers are subjects and a reasonable extension is required, if the officer is incapacitated, and if the officer is a defendant in a lawsuit about the same issue.

There is also an exception If the investigation involves an allegation of workers' compensation fraud on the part of the public safety officer."  In this case, an officer was disciplined for alleged workers' comp fraud and dishonesty in the investigation of the alleged fraud.  He argued this exception only applied when the fraud investigation was done by an outside agency.  The Court disagreed, finding the plain language of the statue did not contain that limitation.

Court of Appeal: City Violated Police Officer's Due Process Rights By Using Same Law Firm to Arbitrate, Advise on Discipline

In Glenn Sabey v. City of Pomona (April 16, 2013) B239916, the Court of Appeal ruled it violates due process to have partners in the same law firm act as advocate seeking termination and adviser to the City, overturning a police officer's termination.  The case stems from an advisory arbitration case against a police officer.  Unlike binding arbitration, advisory arbitration lets the employer reject the arbitration decision.  Here, two attorneys from Liebert Cassidy Whitmore acted as the attorney advocating for termination at the arbitration and legal adviser to the city council about whether to honor or reject the arbitrator's recommendation

 The Court ruled the second attorney's "role as an adviser to the city council violated Sabey's right to due process."  The Court explained "that an attorney cannot act as both an advocate for an agency and then as an adviser to the decision maker who reviews the result that the advocate achieved."  The Court said the rule should be the same for two different attorneys in the same law firm because "a partner would want to make another partner look good by seeking—consciously or unconsciously—to validate the job done by that partner" and "this creates an appearance of unfairness and bias."  The Court noted different rules apply to government lawyers.

As a remedy for the violation, the Court ordered the case "remanded back to the City Council for further consideration with the proviso that it must obtain independent legal advice to eliminate the taint of [the second attorney]’s involvement."   But the Court left the door open to quashing the discipline altogether in similar cases, noting it declined to do so in this case because the appellant "cited no law in support of this contention," and "[i]t is not [the Court's] responsibility to develop an appellant’s argument.”

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.

9th Circuit: Assistant Chief Personally Liable for Retaliation

In Martha Karl v. City of Mountlake Terrace (9th Cir. May 8, 2012) No.11-35343, the federal Court of Appeals for the Ninth Circuit ruled "it was clearly established ... that a supervisor cannot retaliate against a public employee for his or her subpoenaed deposition testimony offered as a citizen in the context of a civil rights lawsuit."  As a result, the court held the local assistant chief of police could be personally liable for retaliation and is not entitled to qualified immunity.

The case started when a peace officer sued the city, alleging he was fired for being outspoken about the war on drugs.  Martha Karl was called as a witness in the officer's lawsuit and testified at a deposition that the assistant chief wanted to terminate the officer because of his political opinions and that the assistant chief "had a reputation as a 'smooth talker' and a “'back stabber.'”  When the assistant chief found out what Karl said, he told others she couldn't be trusted and that he would find a way to get rid of her.

According the court, the evidence showed the assistant chief had Karl transferred to a new position and set her up to fail during her probation period.  He then had her fired.  She sued for retaliation, naming the city and the assistant chief personally.

The court ruled the assistant chief was not entitled to qualified immunity, meaning he could be sued in his personal capacity.  Qualified immunity is the principle that protects peace officers from personal liability in federal civil rights cases unless their conduct clearly violates established statutory or constitutional rights of which a reasonable person would have known.  Here, the court decided it was clearly established that law enforcement supervisors cannot retaliate against employees called as witnesses in civil rights cases on account of their testimony and the assistant chief should have known that.

Court of Appeal Finds Police Chief's Termination Violated POBR

In Robinson v. City of Chowchilla, (5th DCA F059608) December 23, 2011, 2011 WL 6450602, the Court of Appeal held the city violated POBR when it terminated Robinson, the city's police chief, without the requisite notice, statement of reasons, and opportunity for an administrative appeal. Following termination Robinson filed a petition for a writ of mandate claiming violations of POBR. POBR has special provisions for chiefs of police. Specifically, Government Code section 3304(c) provides:

“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons. Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”

The City claimed the notice and appeal provisions apply only if a police chief has a protected property or liberty interest. The Court of Appeal, however, rejected this argument, finding the last sentence of the subsection merely clarified that no new property interest was being created, but has no effect on procedural protections set forth elsewhere in the subdivision.

The Court also held the City removed Robinson from office, thereby violating POBR, when it forced Robinson to leave his physical office, took the authority of police chief away from him, and gave both the physical office and the authority of police chief to someone else, irrespective of when it stopped paying him.

Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay

In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff  backpay because the County denied him a pre-termination administrative hearing.  The Court also voided his purported waiver of POBR rights.

Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election.  However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in  illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.

The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.

The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.

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.”