Mastagni Holstedt Wins Cancer Presumption Exception for Imperial County Probation Officer

In California Workers’ Compensation law, injured workers must normally prove the alleged injury was caused by their job duties (to the standard of a reasonable medical certainty). Over the years, the California legislature has recognized the unique and demanding job duties public safety officers and other first responders face and outlined specific, presumptive injuries. This was done in an effort to make Workers’ Compensation claims and treatment process quicker. One such presumption is cancer. However, each presumption specifically designates who will qualify as a matter of law. These designations are not normally subject to review by the courts. Furthermore, probation officers are categorically excluded in the statutory language of the cancer presumption.

Notwithstanding the statutory exclusion,  Mastagni attorney Brendan B. Rochford successfully argued for an exceptional application of the cancer presumption (William Dallas Jones Cancer Recovery Act (“Act”)), otherwise known as Labor Code §3212.1, to Imperial County Probation Manager Iran Martinez. Raising multiple factors, Mr. Rochford successfully demonstrated Martinez was performing the usual and customary duties of a special agent for the State of California as classified in PC 830.1(b), entitling him to the cancer presumption. The Workers’ Compensation Appeals Board of San Diego agreed and granted Officer Martinez an exception to the presumption. This should soon result in Martinez receiving the benefits for an accepted cancer claim.

The presumptions set forth in Labor Code §3212.1  apply to peace officers sworn under Penal Code §830.1, not to peace officers sworn under Penal Code §830.5. Probation officers in California are sworn under Penal Code §830.5. Attorneys for the County of Imperial argued Officer Martinez’ sworn status precluded him from eligibility under the Act. Relying on Reeves v. ­­­­WCAB, Mr. Rochford countered that Officer Martinez’ job duties as a Narcotics Task Force Officer/Special Agent were also critical factors in the Court’s analysis.

The Court agreed and found that Officer Martinez’ job duties, along with other circumstances including his training, equipment, and title of “Special Agent Martinez,” entitled him to classification as a special agent under Penal Code §830.1(b). After reviewing the deposition of the doctor, the Court further agreed that Officer Martinez’ entitlement to the presumption should clear the way for Workers’ Compensation benefits due to the nature and timing of his injuries. It is on this basis that an order was issued compelling Worker’s Compensation benefits. The decision recognizes the inequity of ordering a probation officer to perform traditional police duties that place them in harm’s way, without affording them the same Workers’ Compensation benefits enjoyed by other PC 830.1 (b)members of the Task Force.

This case speaks to the importance of not giving up on a serious Workers’ Compensation claim simply due to a denial of the presumption based on Penal Code designation. The actual job duties performed at work are crucial factors in determining whether you will be found eligible for a Workers’ Compensation presumption. A consultation with an experienced Workers’ Compensation attorney may be the difference in qualifying for Workers’ Compensation benefits under a public safety presumption.

This decision was recently signed by Workers’ Compensation Judge Wade DiCosmo on January 31, 2020. Defendant enjoys a right to file a Petition for Reconsideration. Updates to be provided accordingly.

Brendan Rochford is a valuable member of the Mastagni Holstedt, A.P.C. team, successfully litigating Worker’s Compensation claims for public safety officers throughout California. As demonstrated by his success in this case, he is well versed in applicable presumptions. He is based in Rancho Cucamonga and regularly appears at the Worker’s Compensation Appeals Boards in San Diego, Riverside, San Bernardino, Pomona, Van Nuys, Santa Barbara, Anaheim, Santa Ana, Los Angeles, Bakersfield, Oxnard, and San Luis Obispo.

AG Grants IAFF Local 1319's Application to Sue "Quo Warranto" to Enforce Appellate Ruling Invalidating Repeal of Interest Arbitration

On behalf of the International Association of Firefighters, Local 1319 (“Local 1319”), Kathleen Mastagni-Storm and Tashayla Billington received the Attorney General’s blessing to sue the City of Palo for violating the MMBA by repealing its Charter’s binding interest arbitration procedures for the police and fire unions.

On July 18, 2011, Palo Alto City Council adopted a resolution to place Measure D on the ballot to repeal binding interest arbitration for the police and fire unions. Local 1319 asserted its right to “meet and consult” under the Meyers-Milias-Brown Act (“MMBA”). The City refused. Local 1319 received favorable decisions from both the Public Employment Relations Board (“PERB”) and the Sixth District Court of Appeal, finding the City violated the MMBA. 

In City of Palo Alto v. Public Employment Relations Board (2016) 5 Cal.App.5th 1271, the Court of Appeal held binding interest arbitration is a mandatory subject of bargaining under Government Code section 3507.  As a result, the Court found the City violated the Meyers-Milias-Brown Act when it pushed through a local initiative to repeal binding interest arbitration while refusing to bargain with Palo Alto Firefighters, IAFF Local 1319.  The Court upheld PERB's factual determinations and rejected the City's arguments. (See "Court of Appeal: MMBA Requires Bargaining Over Binding Arbitration")

Despite the rulings against it, the City refused to reinstate binding interest arbitration. As a result, Local 1319 was forced to file an application to sue quo warranto to challenge the validity of the City’s charter provision.  Although the legal remedy of quo warranto—which requires the Attorney General’s approval to invoke—is most commonly used to contest a person’s entitlement to hold a public office, it may also be used to contest the validity of a city or county charter provision. The quo warranto application is typically filed after the completion of other, related litigation.

To authorize a quo warranto action, the Attorney General must find: (1) that quo warranto is the
appropriate remedy, (2) that the application raises a substantial issue of law or fact that warrants a judicial resolution, and (3) that allowing the proposed quo warranto action to proceed will serve the public interest.

On February 7, 2020, the Attorney General granted theapplication, finding Local 1319 raised a substantial question to be decided by a court – i.e. whether Measure D should be overturned based on the City’s violation of the MMBA.  The Attoreny General explaiend:

"Specifically, an employee organization of a charter city, with the Attorney General’s permission, may sue the city in quo warranto to challenge the validity of a charter amendment on the ground that the city unlawfully exercised its franchise by placing the amendment on the ballot without first complying with the MMBA’s consultation requirements.  As the Court of Appeal found here, “an action in quo warranto is the exclusive remedy to challenge the ballot initiative to repeal article V of the city charter” on the ground that the City did not consult in good faith with Local 1319 before placing  Measure D on the ballot."

The opinion also agreed that, “as Local 1319 point[ed] out, ‘the public has an interest in ensuring charter amendments are validly enacted in accordance with the law and securing stable employer-employee relations.’” This confirms statutes, like the MMBA, serve an important public interest to improve labor relationships within public agencies. 

Through this litigation, Local 1319 has vindicated important MMBA rights precluding the unilateral modification of impasse proceedures, even if enacted by ballot measure, and authorizing quo warranto proceedings to invaldiate such charter amendments.

 

PERB Clarifies that Confidential Directives Given During Internal Affairs Investigations Violate Police Officer Rights

In a recent proposed decision, the Public Employees Relations Board (“PERB”) ruled that a “confidentiality directive” given to police officers in connection with an administrative investigation interfered with officer's protected rights under the Meyers-Milias-Brown Act (“MMBA”). The directive specifically instructed offers not to discuss the investigation with the union.  The case, Oakdale Police Officers Association v. City of Oakdale began after a union representative informed the City that they believed the confidentiality directives issued to several Sergeants were unlawful. The union demanded that the City cease and desist issuing the confidentiality directives as part of the ongoing investigation and requested corrective notices be sent to all interviewed employees.

 As discussed in the decision, the MMBA forbids an employer from interfering with employee’s exercise of their rights guaranteed by the MMBA, including the right to form, join, and participate in the activities of employee organizations of the employees own choosing. It is also unlawful for an employer to deny employee organizations the rights guaranteed to them by the MMBA, including the right to represent their members.

With that in mind, PERB held that the Union established that the City interfered with employee protected rights when it issued the confidentiality directives to both the percipient witnesses and subjects when it barred them from discussing the investigation with other employees. Specifically, the confidentiality directives issued to the four percipient witnesses did not simply limit them from having union representation present during their interview; it was a broad directive prohibiting them from communicating with their exclusive representative at all on the matter. Because each witness had a protected right to discuss the investigation with their exclusive representative, the City also interfered with employee protected rights when it issued the confidentiality directives to the witnesses and subject barring them from discussing the investigation with the Union.

This case serves as an important reminder that overly broad “confidential directives” given at Internal Affairs are in violation of police officer rights.

Mastagni Holstedt Gets PERB Complaint for Employer Refusal to Provide Information

Mastagni attorneys Kathleen Mastagni Storm and Chelsea Avent recently got a Public Employment Relations Board (“PERB”) Complaint issued against the County of Kern for refusing to provide relevant information to Kern County Fire Fighters Association, Local 1301. PERB concluded the County violated the Meyers-Milias-Brown Act by withholding the information from Local 1301.

For over a year, the County dragged its feet and engaged in bad faith bargaining. In July 2018, Local 1301 and the County began negotiations for a successor Memorandum of Understanding (“MOU”). The bargaining ended in a mediation and a fact finding hearing between the parties. Local 1301’s chief negotiator Robbie McCandlish and attorney Howard Liberman’s hard work during the hearing got a favorable fact finding report for Local 1301. The report noted the County had over $180 million in reserves, Local 1301 were the lowest paid personnel in the surveyed departments, and that members have seen minimal to no pay increases since 2008.

During bargaining, the County told Local 1301 it intended to cut approximately three million dollars from the Fire Department’s overall budget. The County insisted on concessions from Local 1301. Local 1301 decided to seek out alternative cost saving proposals in an effort to mitigate the harm a pay cut would have.

Beginning in October 2018, Local 1301 requested information regarding healthcare plans, member information, and claim details to obtain health care cost quotes from outside companies to formulate its proposals for group insurance plans during bargaining.

Between December and April 2019, the County slowly provided different variations of aggregate information for enrollment count, number of dependents, workers’ compensation claims, and annual medical claims. Local 1301 continued requesting the specific information and attempted to work with the County to find an agreeable way to provide the information that would not allow the identification of any members. It was not until April 2019 the County finally told Local 1301 it could not provide the information claiming it could violate health privacy laws.

PERB’s Complaint concluded the County refused to provide information relevant and necessary to Local 1301’s discharge of its duty to represent employees. Further, the County violated the MMBA by refusing to meet and confer in good faith over the requested information, interfering with members’ rights to be represented, and interfering with Local 1301’s right to represent members.

This decision confirms an employer’s duty to either supply relevant information or timely and adequately explain why it cannot provide the information. Even if the employer ultimately provides the requested information, it will not excuse an unreasonable delay.  An employer’s refusal to provide information amounts to bad faith bargaining in violation of the MMBA.

POST Issues New Video Providing Guidance AB 392 and Peace Officer Use of Force Standards

The Commission on Peace Officer Standards and Training ("POST") recently posted its legal analysis of A.B. 392 and its impacts on peace officer use of force standards.  The website inlcudes a link to a video available to the general public about use of force standards.  In the video, the Executive Director of POST Manuel Alvarez Jr., Riverside District Attorney Micahel Hestrin, and Santa Barbara District Attorney Joyce Dudley provide their insights and interpretations of A.B. 392, as well as a discuss of how they will apply the new law.

Any analysis of California's use of force standards should also include S.B. 230 which was Sponsored by PORAC and other law enforcment stakeholders. In addition to mandating minmum use of force standards and training, SB 230 also codifies important legal definitions that directly affect the application of A.B. 392, which utilizes the same terms (S.B. 230 was expressed coupled to the passage of A.B. 392.).  For example, “Feasible” is defined as "reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person." (emphasis added.)  This definition clarifies that tactics increasing the risk to officers are not "feasible."  The law also clarifies that policies and training shall not be considered as imposing a legal duty on officers to act in accordance with such policies and training.  Tellingly, the ACLU vigorously opposed S.B. 230.

WATCH the ACLU's objections to S.B. 230 here.

The Mastagni Holstedt, APC analysis of the use of force legislation is available here:Modernizing Use of Force on Our Terms.