Chuck Reed's Pension Attack Fails to Make the Ballot for a Third Time

Earlier today, former San Jose Mayor Chuck Reed admitted defeat for his third attempt to attack public employees' retirement security.  Accordingly to the Sacramento Bee, the move appears to be motivated by poor polling for the initiative and Reed's inability to raise enough money to pay people to gather signatures in support of the measure.

Reed's campaign for a statewide attack on retirement security follows his failed attempt to attack pensions in San Jose.  Despite his repeated failures of this issue, Reed said he and his partners planned to bring the issue up again in 2018.  He said in a press release that he planned to "re-file at least one of our pension reform measures later this year for the November 2018 ballot."

Reed is joined in his effort by Pacific Grove Mayor Bill Kampe and San Diego politician Carl DeMaio.  Pacific Grove's attack on pensions was ruled unconstitutional in 2013.

PERB Invalidiates San Diego’s Attempt to Bypass Bargaining Over Pensions by Voter Initiative

On December 29, 2015, the Public Employment Relations Board (PERB)ruled in City of SanDiego (2015) PERB Decision No. 2464-M, that the City violated the Meyers-Milias-Brown Act by slashing its plans through ballot initiative rather than bargaining. The three-member Board panel was unanimous in its decision, and ordered the City pay back employees for lost benefits plus interest. The City Attorney has already announced his intent to appeal the decision to the courts, since the value of the benefits the City stripped from its employees is likely in the hundreds of millions.

In 2010, then-Mayor Jerry Sanders began campaigning to “reform” employee pensions. This included a proposal to get rid of City employee pensions and replace them with much cheaper 401(k)-style benefits. In 2011, Sanders and his political allies created the Comprehensive Pension Reform Initiative, later known to City voters as Prop B. Though the Mayor is the Chief Executive of the City—and therefore the chief negotiator for the City in bargaining with employee unions—Sanders did not present his plan as a bargaining proposal to unions, and refused to negotiate when asked. 

The MMBA requires local agencies to meet and confer in good faith with employee organizations over wages, hours, and other terms and conditions of employment. Retirement benefits are unquestionably part of that duty to bargain. Under Seal Beach, public entities have long been required to satisfy bargaining obligations prior to seeking charter changes to employee compensation.  The courts and PERB recognized that if employers could bypass bargaining through legislative or voter enactments, the MMBA could be easily circumvented.  Thus, public entities must bargain over charter changes they wish to submit to a public vote if they impact compensation.

The City attempted to avoid its legal requirements under Seal Beach by miscasting the Mayor's Prop B as the action of private citizens, not public officials, and therefore argued it did not have to bargain with the unions. Sanders himself claimed during the campaign and in the PERB hearing that he was acting as a private citizen, not as the Mayor. PERB saw through the ruse, due to overwhelming testimony proving that Sanders worked on the proposal extensively in his capacity as Mayor, included his staff in the process, and made the Council aware of his intent. This was just a scheme to get around the City’s duty to bargain.

Though the fight isn’t quite over, PERB's ruling vindicates the long standing holding of Seal Beach and represents an important win for public sector collective bargaining rights in California.  PERB’s decision will likely next be heard by the Fourth District Court of Appeal.

Public Employee's Personal Grievance Not Protected by the First Amendment

Pete Turner was hired as a "temporary exempt employee" for the Department of Public Works (DPW) in the City and County of San Francisco. Turner complained about his temporary job status, claiming the City and his Manager Bruce Storrs were violating the City Charter. The Charter only allows hiring temporary employees for certain special projects. According to Turner, the City and Storrs planned to underbid survey work for City and County agencies to "corner the market." They would then be able to make up the money on these low bids by overcharging the public and underpaying the staff. Turner claimed he spoke out against this practice at union meetings, staff meetings, and in face-to-face meetings with Storrs. Turner claimed he was being underpaid and assigned work on matters outside of his job description. Shortly after filing a complaint with HR, Turner was fired.

When he was unable to secure a job as a permanent DPW employee, Turner filed a complaint against the City in state court. The district court dismissed his complaint, finding Turner did not state a claim for retaliation under the First Amendment. To state a claim, the employee must show his speech was protected.

In Turner v. City and County of San Francisco, the Ninth Circuit held the district court did not err by dismissing the complaint. The Court clarified that an employee's speech is protected when he speaks out "as a citizen on matters of public concern," but not when he merely airs a personal grievance. The Court distinguished Turner's case from others where the public employee's speech was protected. Unlike those cases, Turner did not raise his complaint in a public forum, like the Civil Service Commission or Board of Supervisors. Because Turner did not seek relief on behalf of other temporary employees, the Court found Turner was motivated by his own dissatisfaction with his job status. The Court noted Turner's allegation that the City and Storr were violating the Charter could touch on a matter of public interest. However, this was not enough for the Court to find Turner's speech was protected under the First Amendment.

This case illustrates that a personal complaint voiced in a private forum will likely not be protected under the First Amendment even if it touches on matters of public interest.

Supreme Court Shoots Down Excessive Force Case

On November 9, 2015, the Supreme Court ruled that qualified immunity protected a state trooper who shot and killed a dangerous driver in Mullenix v. Luna.

On March 23, 2010, Sergeant Randy Baker of the Texas Police Department followed Israel Leija to a drive-in restaurant with a warrant for his arrest. When Sergeant Baker approached Leija's vehicle and told him he was under arrest, Leija sped off and a high speed chase ensued. During the case, Leija called dispatch and threatened to shoot any officer he saw if they did not abandon pursuit. Leija was also intoxicated.

State Trooper Chandrin Mullenix also responded to the call. While other officers set up three sets of spike strips in hopes of disabling Leija's vehicle, Mullenix called dispatch to propose shooting to stop Leija's car. Mullenix's supervisor instructed him to "stand by" and "see if the spike strips worked first." However, it was unclear whether Mullenix heard his supervisor's command.

Once Mullenix spotted Leija's vehicle coming up the overpass, Mullenix fired six shots. Four bullets hit Leija in his upper body, killing him.

The issue for the Court was whether Mullenix violated clearly established law. Qualified immunity protects "all but the plainly incompetent and those who knowingly violate the law." The Court found no clearly established law barred Mullenix from claiming qualified immunity. As such, Mullenix was entitled to summary judgment against plaintiffs' claim of excessive force in violation of the Fourth Amendment.

In the sole dissent, Justice Sotomayor argued Mullenix should have waited to see if the spike strips worked before shooting. The majority of the Court was not persuaded. The Court emphasized that spike strips don't always work and officers manning those strips are vulnerable to gunfire. According to the majority, Sotomayor's reasoning was in error. Namely, it is not for the courts to decide whether an officer should use one tactic over another.

Although the Court refrained from considering what tactics and officer should use, many agencies' use of force policies do. Some agencies are now moving toward banning the practice of shooting at cars to disable the vehicle. In such cases, an officer may be immune from civil liability, but can still be punished by the department for insubordination or violation of policy.

Peace Officer's Employer May Not Condition Reinstatement From Disability Retirement

A peace officer who recovers from the injury that led to their industrial disability retirement is entitled to reinstatement without any conditions, according to the recent court ruling in Department of Justice v. CalPERS.

Angelita Resendez was employed by the California Department of Justice as a peace officer until her industrial disability retirement in December 2008. She developed a spine condition as a result of several on-the-job injuries. But in September 2009 she applied to CalPERS for reinstatement. Based on a medical evaluation of Resendez, CalPERS notified her in 2010 that she was eligible for reinstatement. DOJ then offered Resendez reinstatement on the condition that she complete medical and psychological exams and submit to a background check. Resendez rejected DOJ’s offer.

Next, DOJ made multiple appeals to overturn CalPERS' determination about Resendez. But these appeals were denied. The Superior Court also ordered DOJ to provide Resendez backpay to 2010 when CalPERS determined she was eligible for reinstatement. DOJ then appealed to the Court of Appeal.

On October 13, 2015, the Court of Appeal ruled in favor of CalPERS and Resendez. CalPERS was correct to limit its analysis to whether Resendez had recovered from the injury that caused her disability. The law requires CalPERS to order a medical exam and then determine if the employee is fit to return to duty. And Government Code section 1031 sets the minimum standards for peace officers. But CalPERS is not authorized to identify new conditions that might disqualify the employee; it must stick to the original disability.

The court also ruled that Government Code section 21193 creates a two-step process for reinstatement. First, CalPERS must determine the employee is fit to return to duty. Second, the employee's former employer must offer reinstatement.

Here, CalPERS properly determined Resendez was fit to return to duty. So DOJ had a mandatory duty to offer Resendez reinstatement. It had no authority to condition her reinstatement on medical exams and background checks. However, once DOJ has reinstated Resendez it may terminate, demote, or transfer her for failing to meet the minimum standards set by Government Code section 1031.

This ruling provides strong protections for peace officers who have been forced into disability retirement by on-the-job injuries. Once a peace officer recovers from such an injury they are entitled to reinstatement with their former employer. An employer has a mandatory duty to offer reinstatement and may not put conditions on the offer.