Court Rules City Employee Has Vested Right to Sick Leave Cashout

In Lorie Deisenroth v. City of San Jose, the Santa Clara County Superior Court ruled an employee had a vested right to sick leave cashout once she retired and therefore "the City could not unilaterally eliminate her right to a payout for sick leave hours."

The City claimed it could change the rules for sick leave cashout after the employee banked the sick leave hours because ti hadn't paid the cashout yet.  The Court rejected that claim, deciding the right to a sick leave cashout vested after 15 years of service under the employee's MOU, even though the cash out did not mature until the employee retired.  The Court explained "the 'vesting' of a benefit must be distinguished from the 'maturing' of those benefits, which occurs after the conditions precedent to the payment of the benefits have taken place..."  As a result, the Court found that sick leave cashout is a form of deferred compensation and retroactive revocation of that right would be unjust and inequitable.

Court of Appeal: No Right Under POBR to Appeal DA's Brady List Decision

In an unpublished opinion, Rehan Nazir v. County of Los Angeles et al. (April 2, 2013 B238477), the Court of Appeal decided police officers do not have a right under POBR to appeal District Attorney's decisions to place them on a Brady list.  The Court reasoned that POBR only gives officers a right to appeal decisions of their employers and DA's offices are not the employing agencies for police officers.  The case does not address a situation, such as with a deputy sheriff or DA investigator, where the county is also the employing agency.

The case is about a city police officer who was placed on a Brady list because of a probable cause declaration.  The officer used a confidential informant in his investigation but omitted that information because there was an independent basis supporting probable cause to detain the individual.  Later, the DA's office characterized the declaration as untruthful and placed the officer on its Brady list.  His department fired the officer.  The officer filed a lawsuit saying he had a right under POBR to an administrative process challenging the DA's placement of him on the Brady list.  The Court of Appeal disagreed, dismissing his lawsuit.

The Court said POBR protects officers from action "by the public entities which employ them," but not other public agencies.  The Court also rejected the argument that section 3304(b) applies to all public agencies.  Section 3304(b) says: “No punitive action ... shall be undertaken by any public agency against any public safety officer ... without providing the public safety officer with an opportunity for administrative appeal.”  The Court decided "any public agency" means any public agency that employs the peace officer in question, not just any agency whatsoever.  As a result, the Court decided the officer could not sue the DA's office under POBR and dismissed his case.

PORAC has promoted a bill, AB 2543, to change the law and prohibit public safety employers from terminating officers merely because they are placed on a Brady list.  Several statewide and local public safety labor associations also support the bill.  Public safety labor associations can also negotiate a Brady protocol that provides more protections for peace officers.

PERB: Employers Must Meet and Confer Over On-The-Job Cameras

In Rio Honda Community College Dist. (March 21, 2013) PERB Dec. No. 2313, PERB decided employers must meet and confer with labor associations over the impacts of video cameras, including whether they might create new kinds of evidence in discipline cases.  PERB's reasoning should apply equally to in-car cameras and GPS devices.

The Board held the union had a legitimate concern the new cameras could be used to monitor employees' compliance with workplace rules, and would create previously unavailable evidence to support discipline or evaluations.  How video recordings might be used in discipline and evaluation is therefore a negotiable effect of the decision to install the cameras.

PERB's decision expands an earlier ruling about use of technology to monitor employees.  In Trustees of the California State University (2003) PERB Decision No. 1507-H, PERB held rules about internet use were negotiable.  Here, PERB said the impacts of using video cameras presents "the same concerns" as "monitoring employee internet usage."  As a result, under this ruling, unions likely can demand to meet and confer about the impacts of other types of electronic surveillance, such as in-car cameras and GPS devices.

Court: Stockton Doesn't Have to Impair CalPERS Pensions for Bankruptcy Eligibility

The U.S. Bankruptcy Court in Sacramento ruled today that the City of Stockton is eligible for bankruptcy protection.  The ruling follows a trial when Wall Street bondholders challenged the City's bankruptcy, claiming the City should have to stop payments to CalPERS.  The Court said nothing in the federal Bankruptcy Code requires impairment of CalPERS benefits for a city to be eligible for bankruptcy. The Court also indicated it would be unconstitutional for the City to impair its contracts in any way except bankruptcy because the Constitution protects creditors.

In a press release, CalPERS praised the Court's decision, noting "Today’s action gives the City the opportunity to propose a forward looking plan of adjustment in the bankruptcy case that will allow them to restore long term financial stability and to provide essential services to the Stockton community through the City's valued public employees." CalPERS' also committed to continuing to protect and defend the integrity and soundness" of employees' pensions. Today's ruling clears the way for bankruptcy, but leaves open future challenges to the City's plan to pay back its debts.

Court Rules POBR Statute of Limitations Tolled Until DA Declines Charges

In Richardson v. City and County of San Francisco (ord. pub. March 15, 2013), the Court of Appeal held a criminal investigation tolls the one year statute of limitations until the DA declines charges.  The case is about a San Francisco fraud investigator who was fired for CLETS violations, check fraud, and resisting arrest.  After the IAs were sustained, she filed a lawsuit claiming her Department did not discipline her within the one-year statute of limitations for discipline under POBR.

POBR’s one year statute of limitations has several exceptions.  One of the exceptions applies when, a “criminal investigation... is pending.”  Richardson argued POBR’s statute of limitations expired because the criminal investigation had to be an “actual and active investigation or prosecution” and the DA had stopped actively investigating the case against her more than a year before she was fired.  However, the Court decided the “active and actual” requirement is unworkable because it would be hard to prove how “active” a criminal investigation is at any point.  Instead, the Court said the investigation ended when the DA declined charges.  As a result, the Court upheld the discipline.