Court of Appeal Finds Department May Have Unlawfully Terminated Officers

On March 20, 2014, the California Court of Appeal found the Orange County Sheriff's Department may have violated officers' POBR rights when it failed to provide a pre-termination hearing after a potentially pre-textual layoff.

The officers were "laid off" from their positions at the Sheriff's Department after the Department re-organized to cut spending.  The officers received a formal termination letter stating the Department faced economic difficulties and the lay-offs were not based on performance.  However, the officers suspected their terminations had to do with their past disciplinary records.  The termination letter informed the officers they were entitled to a "Liberty Interest Hearing" if they responded within 14 days.  Emails exchanged between the human resources representative and one officer explained the Liberty Interest Hearing would not include any presentation of evidence or witnesses.  None of the officers responded because they didn't believe the non-evidentiary Liberty Interest Hearing would result in reinstatement.

One day after the officers were terminated, the Sheriff held an off-site leadership retreat and showed a PowerPoint presentation.  The PowerPoint included slides suggesting the key to improving the Department was getting the right people "on the bus," and the wrong people "off the bus."  The officers filed a lawsuit claiming they were terminated for punitive reasons, rather than the budgetary reasons asserted by the Department.  They argued the Department's decision to terminate them constituted punitive action without providing them with the opportunity for an administrative appeal.  POBR requires the opportunity to a full evidentiary hearing for officers terminated for punitive reasons. 

The Court recognized POBR requires a full evidentiary hearing when officers are terminated for punitive reasons.  The Court stated a full evidentiary hearing usually includes sworn testimony, cross-examination of witnesses, and presentation of argument by the public agency to which the officer could respond.  Also, the public agency bears the burden of proof.  The process offered by the Department as presented by the human resources representative fell short under POBR.

In addition, the Court stated this case had many of the hallmarks of a pretext case.  Warning signs for a pretext case are layoffs that do not involve massive layoffs based on fixed rules such as seniority, a relatively small number of officers terminated, and when the decision-maker is not bound by seniority rules when choosing whom to terminate.  On these grounds, the Court concluded the trial court erred in dismissing the case.

BART POA Wins Injunction Protecting Identity of BART Officer Involved in Critical Incident

In BART Police Officers Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident.

The Department sought to release the name of an officer identifying the officer as the subject of a disciplinary investigation following a use of force incident that gained widespread notoriety.

Following a use of force incident, a citizen made a complaint against the officer, and the department made statements to the media that the incident was under investigation. The Department informed the officer that they intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident. The Department informed BART POA it intended to release the officer’s name to the press.

BART POA President Keith Garcia immediately moved to protect the officer’s privacy. BART POA sent a cease and desist letter to the Department and prepared an application for a temporary restraining order. Then the POA secured an agreement from the District to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.

Then, on April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction protecting officer privacy until at least 30 days after the California Supreme Court decides two closely related cases.

The California Supreme Court is considering two important cases about peace officers’ privacy rights. In Federated University Police Officers Association v. Superior Court, the Court will decide whether or not the California Public Records Act can be used to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011.

In Long Beach Police Officers Association v. City of Long Beach, the Court will decide whether the California Public Records Act requires agencies to release the names of officers involved in officer-involved shootings. Together, these cases will establish the legal foundation for how these information requests must be treated in the future. In the meantime, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

Mastagni Law attorneys Kevin A. Flautt, David E. Mastagni, Jeffrey R. A. Edwards, and Brendon P. Parenti represented BART POA in the matter.

Court Strikes Down San Jose Mayor Chuck Reed’s Challenge to Attorney General’s Summary of His Pension Reform Act

On March 17, 2014, a Superior Court judge rejected Mayor Chuck Reed’s challenge to the Attorney General’s summary of his “Pension Reform Act of 2014.”  Reed claimed the first sentence of Attorney General Kamala D. Harris’s summary was false, partial, and argumentative.  The Court analyzed the Attorney General’s sentence word-by-word, and found it was not false, misleading, or partial in any way. 

Attorney generals summarize each ballot initiative for voters in 100 words or less.  The summary appears on the initiative petition circulated among voters.  If a minimum number of voters sign the initiative petition, the initiative appears on the ballot.  The summary gives voters a sense of the measure’s purpose without creating prejudice for or against the proposed measure.  Attorney General Kamala D. Harris wrote the title and summary for Reed’s Pension Reform Act.  Reed challenged the first sentence of the summary, which stated:  “Eliminates constitutional protections for vested pension and retiree healthcare benefits for current public employees, including teachers, nurses, and peace officers, for future work performed.” 

First, Reed claimed the word “eliminates” was misleading because the initiative does not repeal or replace any provision of the state Constitution.  The Court agreed the initiative does not eliminate any provision of the state Constitution.  But the summary does not state the initiative eliminates constitutional provisions – the summary states the initiative eliminates constitutional protections.  The Court found the Attorney General’s characterization was accurate. 

Second, Reed argued the phrase “constitutional protections” is false and misleading because the California Rule granting public employees vested pension rights in retirement benefits is not constitutionally based.  The Court replied, “If the California Supreme Court says the California Rule’s protections are constitutionally based, they are.”

Next, Reed ignored California Supreme Court precedent a second time, arguing the word “vested” is false and misleading.  Reed claimed the word “vested” only describes benefits that have already been earned through past service, not benefits earned through future service.  Again, the California Supreme Court has used the term extensively to describe benefits earned through future service.

Finally, Reed challenged the Attorney General identifying “teachers, nurses, and peace officers” as affected public employees.  Reed claimed the Attorney General cherry-picked three very popular job classifications of public employees to discourage voter support.  In fact, those three job classifications make up close to half of all public employees.  The Court found the Attorney General accurately and concisely identified the affected employees for voters.  

The Court's decision marks another blow to Mayor Chuck Reed's initiative, which seeks to eliminate fundamental constitutional protections for California's public employees. 

Court of Appeal Rules CPRA Does Not Require Public Agencies to Disclose Officials’ Communications on Personal Accounts

On March 27, 2014, the California Court of Appeal held the California Public Records Act (CPRA) does not require public agencies to disclose officials’ communications about public business on personal email and cell phone accounts.  The Court held communications stored solely on private accounts are outside the reach of public records requests under the CPRA.   It is becoming increasingly common for public officials to conduct public business using private accounts.  While members of the public may seek disclosure of officials’ voicemails, text messages, and emails stored on public agencies’ accounts, communications on private accounts are protected from CPRA requests.

In June of 2009, Ted Smith requested, “voicemails, emails or text messages” on personal electronic devices about “matters concerning the City of San Jose” on private electronic devices owned by Mayor Chuck Reed, members of the City Council, and their staff.  The City agreed to produce records stored on its servers and those to or from private devices using City accounts, but refused to provide communications stored solely on personal accounts.  Smith responded by filing a lawsuit in Santa Clara County Superior Court.  The Superior Court sided with Smith and granted his request. 

The Court of Appeal overruled the Superior Court in favor of the City.  The Court found officials’ communications stored solely on personal devices don’t fall within reach of CPRA requests because they are not “owned, used, or retained” by the public agency.  The Court acknowledged public policy concerns of the public’s right to know versus the burden on the agency to provide the information.  However, the Court determined the Legislature is better suited to make such public policy decisions.  

The Court acknowledged public agencies have the right to create its own rules for disclosure of communications related to public business.  In fact, the City of San Jose adopted a resolution addressing this very issue after Smith filed his lawsuit.  Resolution No. 75293 was adopted on March 2, 2010.  The resolution revises City Council Policy 0-33 and allows public access to all communications of the mayor, City Council members, or their staff, regarding public business on private devices.  Mayor Chuck Reed himself signed the resolution.  However, the Court stated that the resolution was not relevant to the Court’s interpretation of the CPRA.

The full court opinion is posted here.

Court of Appeal Rules Overtime is Defined By Collective Bargaining Agreement

The California Court of Appeal issued an opinion in Vranish v. Exxon Mobil Corporation. The Court ruled collective bargaining agreements (CBA) meeting certain requirements define overtime for covered employees, not the California Labor Code.

In Vranish, Exxon Mobil employees regularly worked 12-hour shifts. They worked 7 consecutive days followed by 7 days off. The employees were represented by a labor organization and had a CBA. Under the CBA, employees only received overtime compensation if they worked more than 12-hours in a workday, or more than 40 hours in a workweek. However, Labor Code section 510 states employees must receive overtime pay if they work more than 8 hours in a single day.

The employees filed suit to recover overtime pay for regularly working more than 8 hours in a workday. But the Court ruled the Labor Code’s definition did not apply to the employees. Labor Code section 514 states the Labor Code’s definition of overtime does not apply to employees covered by a valid CBA meeting certain requirements. Since the CBA in this case met all of the requirements under section 514, the CBA defined overtime rather than the Labor Code.