Sacramento County LEMA Vindicates Right to Investigate and File Grievances Without Fear of Retaliation

Sacramento County Law Enforcement Managers Association (LEMA) President Michael Ziegler obtained a settlement protecting the right of union officers to investigate and pursue unpopular grievances in his lawsuit against former-Sheriff John McGinness and the County of Sacramento.

In March 2010, Ziegler filed a grievance on behalf of himself, LEMA, and LEMA’s members alleging violations of Sheriff’s Office policies relating to the handling of FEO files of a LEMA member running for sheriff. On the same day Ziegler appealed the denial of the grievance, it served Ziegler with a notice of interrogation. The notice said Ziegler was “suspected of misconduct” and indicated that the interrogation was related to Ziegler’s communications with a witness during his investigation of LEMA’s grievance. Between April 2010 and August 2010, Ziegler received three more notices of interrogation. Ziegler objected to the investigation.

All four notices told Ziegler he was prohibited from discussing the matter with anyone other than his representative. As a result, Ziegler was prohibited from discussing the substance of the investigation with LEMA’s board of director or members. Ziegler submitted to interrogation on August 18, 2010 under threat of discipline for insubordination.

Ziegler filed a petition for writ of mandate against the County of Sacramento and then-Sheriff John McGinness on August 10, 2010.   Ziegler’s petition alleges the County violated the Meyers-Milias-Brown Act by opening a retaliatory investigation against Ziegler for his efforts to investigate the improper handling of LEMA member’s personnel records. Ziegler also claimed the Sheriff’s actions impermissibly interfered with his representation of his members. The petition sought, among other things, a writ compelling the County to cease and desist from unlawfully retaliating against Ziegler and expunge all records of its investigation of Ziegler and a determination that the County willfully and maliciously violated the MMBA.

With encouragement from the Court, the parties participated in mediation and reached a global resolution of the suit. Under the settlement all references to the disciplinary investigation of Ziegler will be removed from his files and the County paid all mediation costs and Ziegler’s attorney fees for the mediation. The County is also required to email every member of LEMA a copy of the agreement, which includes the County’s acknowledgement that (1) “The investigation of an employee representative over engaging in concerted labor activity, including but not limited to the investigation of a potential grievance or the filing of a grievance is unlawful” and (2) “Employee representatives shall not be subject to the threat of discipline for exercising rights under the MMBA or any grievance process.”

Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens represented LEMA President Mike Ziegler is the matter.

Court Dismisses DEA Agent's Lawsuit Over Leaked Shooting Video

On January 17, 2012, the federal appellate court for the District of Columbia dismissed a privacy lawsuit brought by a DEA after a video of him accidentally discharging his weapon was released on the internet.  The agent discharged his weapon, injuring himself, during a presentation to students at a local school.  One of the parents was recording the presentation and turned the video over to the DEA shortly after.  It was later copied and distributed to various people within the DEA.  The officer never learned how it was released publicly, but the video was widely viewed on the internet.

The officer brought claims under federal and Florida law, alleging a public disclosure of private facts.  While the court noted the DEA's conduct was"far from a model of agency treatment of private data," the court dismissed the claim, noting "[n]o liability attaches 'for giving further publicity to what [a] plaintiff himself leaves open to the public eye.'”

Federal Court Signals End for CDCR Receivership

The federal judge overseeing the federal receivership of California's state prison system announced today "the end of the Receivership appears to be in sight" after six years of federal intervention in California's prison system.  The federal court took control over parts of the state prison system after finding constitutional violations and appointed a receiver to oversee significant structural changes.  The state challenged the court's order, ultimately resulting in the United States Supreme Court case Brown v. Plata, which upheld the receivership.

Court of Appeal Vindicates Firefighter's Workers' Comp Rights

Where does the personal end and the legally compensable begin? In Richard Warner v. W.C.A.B. et al., California’s Second Appellate District recently had a chance to weigh in on this crucial workers’ comp question as it relates to a work-from-home firefighter.

Richard Warner is a Los Angeles County firefighter who works and lives on small, picturesque Santa Catalina Island. To ensure that the approximately 4,000 residents of the island have fire protection, LA County required Warner, along with one other firefighter, to live on the island. Warner’s house is both residence and partial workplace. Island denizens visit him there when they need his services, and he often responds to incident calls directly from home, without traveling to the island’s modest fire station.

In February of 2010, Warner’s wife asked him to help her trim the wisteria that grows wildly around their house. Warner, after falling off a ladder, injured his neck and his back, as well as his wrist, elbow, and shoulder on his left side.

The County tried, with initial success, to avoid paying disability or medical costs to Warner, under the claim that this injury was due to a personal act—a favor Mr. Warner did for his wife—rather than part of his employment obligations. The Workers’ Comp Appeals Board sided with the County, concluding that although Warner suffered his injury in the course of employment, it did not arise out of employment, because trimming the wisteria was something he did for private purposes.

The Second Appellate District overturned the Board and upheld Warner’s rights. The Court invoked the time-honored Dual Purpose Doctrine: if an action serves both personal and employment-related ends, it is an act which “arises out of work” for compensation purposes. There was no question that Warner worked from his home. It was equally incontestable that the County benefited from having this fire station-cum-residence be both easily accessible and aesthetically pleasing.

In other words, trimming the wisteria served both Warner’s ends and those of his boss—the fact that Warner acted at his wife’s request did not negate this fact. His employer must pay him workers’ comp.

The court’s decision is unpublished, but it nevertheless represents a significant vindication of the rights of workers in a time when they are under increasing attack. Workers’ comp exists to help those who are hurt serving their bosses’ interests. Employers who compel their subordinates to mingle duty and leisure should not be able to cry “Personal purposes!” when the same mingled deeds lead to mangled results.

Fox40: Stockton's "fiscal emergency declaration may come back to bite the city big time"

Fox40 reporter Rowena Shaddox reported Friday about the Stockton Police Officers' Association major court victory over their right to enforce their contract. The report includes interviews with Sgt. Bill Hutto and Ofc. Mark McLaughlin. See the entire video below and here.