Stockton POA President, Officer Vindicated of Insubordination Charges

As reported in LRIS, an arbitrator reversed the suspensions of Stockton's POA president and a board member after the City retaliated against them for participating in a POA charitable fundraiser and ordered full back pay.  The decision vindicates the officers and makes clear they did nothing wrong.  Indeed, according to the Stockton Record, "the dispute ended with an arbitrator finding that [the chief] mishandled the situation."

In the lead up to Stockton's bankruptcy, the City and the POA engaged in several legal battles, including the City’s unconstitutional attempt to void the POA contract through a declaration of fiscal emergency.  As the city manager tried to discredit the POA and blunt their public relations efforts, his chief of police claimed POA members couldn't do charitable work because it violated the Department's outside employment policy. 

Then he issued a vague order to "SPOA members" to not "directly or indirectly" participate in the selling/bartending of alcohol. The POA fought back and went forward with a charitable fundraiser, having members' families sell beer instead of the officers.  Then, after the POA made a vote of no confidence against the chief, he suspended SPOA President Stephen Leonesio and Director Mark McLaughlin for insubordination based on their participation in the charitable fundraiser.

The arbitrator ruled the suspensions unjustified.  The arbitrator ruled the chief's order was vague and confusing.  The order did not spell out what counted as selling/bartending and what it could even mean to "indirectly" bartend.  The arbitrator found that "they attempted to comply with the order as they reasonably understood it based on Leonesio’s discussions with Ulring and the language of the order itself.  It bears repeating that, before the event began, SPOA recruited family members and friends to staff the booths and sell alcohol in the place of SPOA members."

The order also didn't make sense because the POA had served alcohol at several charitable events in the past and "In fact, [the chief] himself has served and purchased alcohol at such events."  “If [the chief] truly had the concerns, … he should have said so in clear and unambiguous language,” the arbitrator said. “Instead, he issued an ambiguous and confusing order."  Since the order was unclear and the officers made a reasonable effort to comply with it, they should never have been suspended.

“The taint the city tried to put on their careers has been erased,” David Mastagni said. “The city insisted on going forward with the discipline on these two guys. … It was certainly personal on the city’s end.”  Mastagni attorneys David E. Mastagni and Jeffrey R. A. Edwards represented Officers Leonesio and McLaughlin.

Court of Appeal: POBR Violation Voids Dishonesty Charge

In Ruiz v. City of Bell Gardens (2013) Case No. B244395, the Court of Appeal affirmed a superior court ruling voiding a dishonesty allegation because of a POBR violation.  Officer Ruiz was on administrative leave pending the outcome of an IA investigation.  When his department put him on administrative leave, it ordered him not to enter any city property not open to the general public.  Then, a lieutenant came across him in police trailer not open to the general public and asked him about why he was there.  The court found that the lieutenant's questions constituted an interrogation under POBR.  Since the department did not give him notice of the interrogation in advance, it violated POBR and Officer Ruiz statements were suppressed.  Without his statements, there was no basis to support the dishonesty allegation.

Mastagni Holstedt, A.P.C. Announces the Addition of New Associate, John H. Bakhit, Esq.

Mastagni Holstedt A.P.C. is pleased to announce the addition of John H. Bakhit as the newest associate attorney with the firm. Mr. Bakhit works in the firm’s Labor and Employment Department. He received his Juris Doctorate from Santa Clara University School of Law, and his Bachelor of Arts degree from Columbia College, where he graduated magna cum laude.

Before entering law school Mr. Bakhit served as an Oakland Police Officer working Patrol and Narcotics. During law school, Mr. Bakhit was awarded the Law Faculty Scholarship and the Certificate for Excellence in Oral Advocacy. He also completed an internship with the Santa Clara County District Attorney’s Office, where he was assigned to the Gang Unit. As a practicing attorney, Mr. Bakhit has represented hundreds of peace officers in administrative and criminal cases. He has also negotiated complex employment contracts. Mr. Bakhit is admitted to practice in all state courts in California, as well as the Central and Southern Districts of the U.S. District Court, California.

Founding partner, David P. Mastagni stated, “We are pleased to welcome Bakhit to our firm as our Southern California lead attorney; his experience will allow us to further service the firm’s regional and statewide clients.”

With more than 55 attorneys and negotiators, Mastagni Holstedt A.P.C. has the largest law practice representing law enforcement and firefighters in California and the U.S. The firm is dedicated to representing clients in the protection and advancement of public safety officers and their rights. The Sacramento-based firm has gained state and national recognition in the area of labor and employment as an AV-rated preeminent law firm by Martindale Hubbell, and has been listed among the top law firms in the Sacramento Business Journal, Forbes Magazine and Fortune Magazine.

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: "Liking" Sheriff Candidate on Facebook Protected by First Amendment

In Bland v. Roberts (4th Cir., Sept. 18, 2013, 12-1671) 2013 WL 5228033, the federal Court of Appeals for the Fourth Circuit ruled that the act of "liking" a candidate for Sheriff on Facebook by a deputy sheriff is protected speech under the First Amendment. As a result, it is unlawful for a sheriff to retaliated against an employee for "liking" his opponent.

The case started when sheriff’s office employees brought a civil rights action alleging that the sheriff retaliated against them by reappointing them because of their support of his electoral opponent. Two of the employees expressed support for the Sheriff’s opponent by “liking” his Facebook page and posting comments of encouragement for his upcoming election. After the sheriff was reelected, he refused to reappoint the employees to their positions as sheriffs deputies at the jail, a typical process in that jurisdiction.

 They sued, claiming that the sheriff violated their First Amendment rights to free association and free speech. Initially, the District Court sided with the sheriff, finding merely “liking” a Facebook page is insufficient speech to merit constitutional protection, but the Court of Appeals reversed.

The Court of Appeal said when one “likes” a political campaign's Facebook page, the user becomes associated with the campaign. A photo of the user is posted to the campaign’s profile, a link is provided on the users profile that others can use to access with the campaign’s page, and the “thumbs up” icon communicates the user’s support. The Court said the act of “liking” the page is like displaying a political sign in one’s front yard, which the Supreme court has held as substantive speech.