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Thursday, July 30, 2015
Thursday, July 16, 2015
U.S. Supreme Court Strikes Down Law Allowing Police to Search Hotel Registries
On June 22, 2015, the U.S. Supreme Court held in City of Los Angeles v. Patel that police searches can no longer be conducted on hotel and motel registries without a warrant absent consent or exigent circumstances. The case considered the constitutionality of Los Angeles Municipal Code 41.49. The Code stated all hotel and motel operators shall make their records available to any officer of the Los Angeles Police Department for inspection at any time. If operators failed to turn over these records, they could be charged with a misdemeanor. A group of motel operators and lodging associations challenged the law, asserting such searches were unreasonable under the Fourth Amendment.
The U.S. Supreme Court ultimately held searches without warrants of hotel and motel registries are unconstitutional absent consent or exigent circumstances. The Court stated the subject of a hotel registry search must be afforded the opportunity to obtain pre-compliance review before a neutral decision maker.
The Supreme Court outlined several ways an officer may search hotel registries absent a special need or consent from the operator. First, an officer could serve the hotel operator with an administrative subpoena, allowing the hotel operator an opportunity to challenge the subpoena in front of a judge before suffering any penalties for refusing to comply. An officer also could apply for a warrant. Additionally, if officers fear the destruction of the records while awaiting an available judge, they are permitted to guard the registry until a hearing could occur.
The U.S. Supreme Court ultimately held searches without warrants of hotel and motel registries are unconstitutional absent consent or exigent circumstances. The Court stated the subject of a hotel registry search must be afforded the opportunity to obtain pre-compliance review before a neutral decision maker.
The Supreme Court outlined several ways an officer may search hotel registries absent a special need or consent from the operator. First, an officer could serve the hotel operator with an administrative subpoena, allowing the hotel operator an opportunity to challenge the subpoena in front of a judge before suffering any penalties for refusing to comply. An officer also could apply for a warrant. Additionally, if officers fear the destruction of the records while awaiting an available judge, they are permitted to guard the registry until a hearing could occur.
Monday, July 6, 2015
California Supreme Court Clarifies Pitchess Process Protects Officer Privacy
On July 6, 2015, the California Supreme Court reversed the Court of Appeal to protect the confidentiality of peace officers' personnel files. In People v. The Superior Court of San Francisco County, the Supreme Court held District Attorneys offices must file Pitchess motions to review personnel files, ending attempts by some DAs offices to have unfettered access to officers' private information.
Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file. If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.
This process applies in criminal cases, but also civil and administrative cases. In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland. Under that case, a prosecutor must disclose information that may help a criminal defendant in court.
In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations. Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA. The DA then had to file a Pitchess motion to access relevant portions of the officer's file.
But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants. In this case, the trial court and the Court of Appeal agreed with this conclusion.
The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons. First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute. Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion. The Supreme Court disagreed with this reasoning.
The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady. It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances. Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer. The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.” The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.
Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."
Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file. If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.
This process applies in criminal cases, but also civil and administrative cases. In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland. Under that case, a prosecutor must disclose information that may help a criminal defendant in court.
In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations. Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA. The DA then had to file a Pitchess motion to access relevant portions of the officer's file.
But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants. In this case, the trial court and the Court of Appeal agreed with this conclusion.
The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons. First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute. Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion. The Supreme Court disagreed with this reasoning.
The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady. It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances. Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer. The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.” The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.
Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."
Tuesday, June 30, 2015
Supreme Court to Decide Challenge to CTA's Fair Share Fees
On June 30, 2015, the United States Supreme Court agreed to hear a constitutional challenge to the California Teachers Association's ability to collect fair share fees from non-members who benefit from CTA contracts.
Fair share fees, also called agency fees, are fees paid by employees who benefit from a union contract, but opt out of full membership. Many unions, particularly in public safety, have voluntary membership rates above 99%. But other unions have lower voluntary member rates for a variety of reasons and rely on fair share fees to finance contract negotiations and other core union activities.
Courts have long considered fair share fees constitutional in the public sector since the Supreme Court's 1977 decision Abood v. Detroit Bd. Of Ed., 431 U.S.209, 232. But courts require unions who collect them to divide their core labor activities from other other activities and assess a fair share fee that only covers the cost of core activities. In California, these rules are part of PERB's regulations. They require unions to give non-members written notice about agency fees and, depending on their size, prepare audited financial statements. In this way, the courts balance the rights of non-members with the needs of the unions that provide critical services.
But the Supreme Court indicated recently it may change that balance and let non-members free ride on union benefits. Last year, in Harris v. Quinn, the Supreme Court held the First Amendment prohibited fair share fees from some types of organized workers. In the opinion, the Court disparaged fair share fees and invited another challenge. But that case involved home health care workers who did not have a traditional union-member relationship and did not apply to other types of employees. Now, the Court will hear a direct challenge to fair share fee requirements under California's regulatory scheme in its October term.
Fair share fees, also called agency fees, are fees paid by employees who benefit from a union contract, but opt out of full membership. Many unions, particularly in public safety, have voluntary membership rates above 99%. But other unions have lower voluntary member rates for a variety of reasons and rely on fair share fees to finance contract negotiations and other core union activities.
Courts have long considered fair share fees constitutional in the public sector since the Supreme Court's 1977 decision Abood v. Detroit Bd. Of Ed., 431 U.S.209, 232. But courts require unions who collect them to divide their core labor activities from other other activities and assess a fair share fee that only covers the cost of core activities. In California, these rules are part of PERB's regulations. They require unions to give non-members written notice about agency fees and, depending on their size, prepare audited financial statements. In this way, the courts balance the rights of non-members with the needs of the unions that provide critical services.
But the Supreme Court indicated recently it may change that balance and let non-members free ride on union benefits. Last year, in Harris v. Quinn, the Supreme Court held the First Amendment prohibited fair share fees from some types of organized workers. In the opinion, the Court disparaged fair share fees and invited another challenge. But that case involved home health care workers who did not have a traditional union-member relationship and did not apply to other types of employees. Now, the Court will hear a direct challenge to fair share fee requirements under California's regulatory scheme in its October term.
Thursday, June 25, 2015
PERB Clarifies Jurisdiction Over "Mixed Unit" Associations with Peace Officer and Non-Peace Officer Members
In County of Santa Clara (2015) PERB Decision 2431-M, the Public Employment Relations Board found PERB has jurisdiction over charges brought by labor associations representing mixed units.
This case involved the Santa Clara County Correctional Peace Officers Association, which represents one bargaining unit, the Correctional Employees Unit. That unit is composed of peace officers under Penal Code section 830.1(c) and non-peace officer correctional officers. This type of unit is sometimes called a "mixed unit."
There has been a dispute about whether PERB has jurisdiction over charges brought by or against labor associations representing peace officers, but also other employee classifications. The reason there is a dispute is that Government Code section 3511, part of the MMBA, exempts "persons who are peace officers" from the 2001 changes to the MMBA that gave PERB jurisdiction over the Act. Some parties claimed this meant PERB does not have jurisdiction over claims brought by labor associations representing mixed units, since those units contain peace officers. The Board heard oral argument on this issue two years ago, but that case settled before the Board issued a decision.
Since this case also involved a mixed unit, the Board clarified its jurisdiction over these units. The Board wrote "we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers."
The Board explained, "MMBA section 3511 precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations." The Board found support for this distinction in the MMBA's own definition of person which refers to a natural person, distinguishing it from an entity, such as a labor association. Likewise, the Board noted the Legislature gave it jurisdiction over factfinding requests without a restriction on mixed units.
Mastagni Holstedt senior associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.
This case involved the Santa Clara County Correctional Peace Officers Association, which represents one bargaining unit, the Correctional Employees Unit. That unit is composed of peace officers under Penal Code section 830.1(c) and non-peace officer correctional officers. This type of unit is sometimes called a "mixed unit."
There has been a dispute about whether PERB has jurisdiction over charges brought by or against labor associations representing peace officers, but also other employee classifications. The reason there is a dispute is that Government Code section 3511, part of the MMBA, exempts "persons who are peace officers" from the 2001 changes to the MMBA that gave PERB jurisdiction over the Act. Some parties claimed this meant PERB does not have jurisdiction over claims brought by labor associations representing mixed units, since those units contain peace officers. The Board heard oral argument on this issue two years ago, but that case settled before the Board issued a decision.
Since this case also involved a mixed unit, the Board clarified its jurisdiction over these units. The Board wrote "we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers."
The Board explained, "MMBA section 3511 precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations." The Board found support for this distinction in the MMBA's own definition of person which refers to a natural person, distinguishing it from an entity, such as a labor association. Likewise, the Board noted the Legislature gave it jurisdiction over factfinding requests without a restriction on mixed units.
Mastagni Holstedt senior associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.
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