Mastagni Holstedt is Proud to Fly the Thin Blue Line Flag

Mastagni Holstedt is proud to display a Thin Blue Line Flag outside its Sacramento headquarters. The Thin Blue Line Flag is displayed under the American flag on a custom built 30-foot flag pole at the corner of 19th Street and I Street in Sacramento.

"The Thin Blue Line Flag represents our appreciation of and commitment to protecting law enforcement officers statewide," says David P. Mastagni.  "Law enforcement officers face new and unprecedented threats to their personal safety and we are proud to stand in solidarity with them, as we have for more than 40 years," he said.  Mastagni Holstedt is the largest law firm in California specializing in representing public safety professionals and their labor associations, with offices in Sacramento, Los Angeles, the San Francisco Bay Area, and the Inland Empire.

Third Appellate District Upholds Award of Penalties for Late Advance Disability Pension Payments

In the recently decided Gage v. Workers Compensation Appeals Board, (CA3, Nov. 22, 2016 No. C081618)  the Court upheld the ability for employees to receive penalties for late advance disability pension payments. In this case, a Sacramento County Sheriff’s Deputy, represented by Greg Gomez of Mastagni Holstedt, APC, sustained a job-related injury and applied for an industrial disability retirement. In cases like these involving peace officers, the injured party can also apply for advance disability pension payments in order to cover living expenses while the disability retirement application is being decided.

Here, Gage petitioned for these advance payments and applied for industrial disability retirement on March 6, 2015. When payments did not arrive, Gage petitioned for late payment penalties against the County on June 2. The County claimed not to have received the application until June 11. The County also asserted that the Workers Compensation Appeal Board (WCAB) did not have authority over advance payments of pension because that would fall under another a different law (County Employees Retirement Law of 1937), and thus it could not apply penalties.

While this issue was being decided, the County continued to stall payments due to some additional technicalities (legal joinder). On June 29, it finally approved payment of benefits. Gage filed a petition for penalties because the benefit check wouldn’t arrive until July 2, almost 4 months after her initial request.

A workers compensation judge initially agreed with Gage that disability pension payments were considered compensation, and thus were subject to penalties for late payment. The County appealed arguing that advance pension disability payments were an obligation of the retirement system, and thus not subject to the penalty. On appeal, the WCAB overturned the workers compensation judge’s initial decision.

When the case was finally appealed to the Third Appellate District, the Court explained that the workers compensation law was intended to be liberally construed for the purpose of extending benefits to those injured in the course of employment. This includes making sure that those in law enforcement are given all the rights attendant to the workers compensation law. The advance disability pension payments are specifically provided to help officers who would otherwise have difficulty making the monthly bills if they had no income due to being injured. In fact, the payment of such benefits was made mandatory in 2002.

The Court also discredited the County’s argument that under the applicable code section, the repayment of retirement benefits was outside of WCAB’s jurisdiction. The Court stated that while the repayment of retirement benefits once disability retirement was approved was outside the scope of the WCAB’s jurisdiction, that did not bar it from asserting penalties on late payments, because such payments are considered compensation and therefore fall under WCAB’s jurisdiction. While the court remanded the case to determine if the delay in this case was sufficiently unreasonable such that penalties were required, this case still stands as a big win for employees seeking disability retirement. Mastagni Holstedt, APC is requesting that this case be published so that it has precedential value.

Mastagni Holstedt, APC is privileged to have represented the Sacramento Deputy Sheriffs Association and Ms. Gage in obtaining this important result. Greg Gomez of Mastagni Holstedt, APC represented Ms. Gage in this matter.

Arbitrator Awards BART POA Nearly $1.1 Million Dollars in Illegal Subcontracting Grievance

The BART Police Officers’ Association secured an award of nearly $1.1 million for its members at arbitration. Arbitrator Ron Hoh ruled for BPOA, finding the Bay Area Rapid Transit District  subcontracted BPOA bargaining unit work in violation of the union's MOU.  

The Bay Area Rapid Transit District decided to replace the nearly forty year old fire alarm systems at seven stations on the San Francisco side of its operations.  The District entered into a contract with Blocka Construction Company to retrofit fire alarm systems at the stations.  When decommissioning the old alarms, the District circumvented the MOU between the District and BPOA by requiring Blocka to subcontract non-union security personnel to act as “Firewatch” while the decommissioned alarms were replaced.

As soon as the BPOA discovered this MOU violation, a grievance was filed demanding the positions immediately be provided to BPOA members along with traditional make-whole remedies. Knowing the MOU prohibits subcontracting, the District attempted to avoid its contractual obligations by supplanting the CSOs with security personnel disingenuously labeled “Firewatch.”  The District could not refute the evidence confirming that the jobs the District subcontracted out were actually jobs historically performed by CSOs.  The Arbitrator stated:

“[t]he evidence thus shows that CSO’s regularly monitor from fixed-site posts [at] various District locations for both safety and security reasons, including safety functions whose goal is to keep the public away from both stations and rail right-of-way at construction locations and when station and track related repairs and necessary.  In addition, their job description includes the duty of ‘monitor(ing) construction sites when contractors are not working at night’ - a major element of the station alarm replacement project involved here - and ‘report(ing) situations requiring...emergency assistance.’  It cannot be disputed that the existence of fires on District property ‘...require(s)...emergency assistance.’”

The District's Project Manager claimed the two positions are wholly unrelated.  But, Arbitrator Hoh admonished the District, stating:

“It is apparent that her (Patrice McElroy) decision during the grievance procedure that the fire watch duties were closest to those of the District Safety Monitor was founded upon less than fully necessary information...The duties involved here do not better fit those of Safety Monitors as claimed by the District.  The fire watch function has nothing to do with either ‘assist(ing) independent contractors in safety areas,’ serving as ‘liaison between the District and (contracted) construction crews’ or reporting to the District and/or those contractors any incidents, injuries or violations of safety work practices.’”

Mastagni Holstedt, APC is privileged to have represented BPOA and its members in obtaining the largest grievance arbitration award in BPOA’s history.  Sean Currin of Mastagni Holstedt, APC represented the BART POA in this matter.    

CBS13 Interviews David Mastagni About Military Equipment for Law Enforcement

CBS13 interviewed Mastagni Holstedt partner David P. Mastagni about President Obama's call to limit military equipment in law enforcement agencies.  In the interview, Mastagni explained, "Obama's dead wrong" and the policy "is going to decrease public safety [and] put the public at risk, increase the risk of law enforcement officers' injury or death in the line of duty.  He explained, "the equipment that is necessary to meet and exceed the criminal threat is the type of equipment he is seeking to ban."