The Passage of Senate Bill 2 and the Fight to Protect Due Process in Law Enforcement Decertification

The State Assembly and Senate recently passed Senate Bill 2 (SB 2), and it now awaits to be signed into law by the Governor. SB 2, introduced by Senators Bradford and Atkins, will establish a nine-member Advisory Board that will review “serious misconduct” by peace officers and make recommendations to suspend or revoke a peace officer’s POST certification. SB 2 also made slight changes to the Thomas Bane Civil Rights Act. SB 2 will not go into effect until 2023 because the definition of “serious misconduct” has not been adopted and the Advisory Board needs to be selected. 

Notwithstanding Senator Bradford’s testimony to the contrary, SB 2 originally set up a system where a politically charged and biased Advisory Board was given unchecked power to revoke the certifications of officers even when their own agency, an arbitrator, or a court did not sustain misconduct. Senator Bradford testified that the Advisory Board only made recommendations and the ultimate determination would be left to POST. While technically true, these claims were highly misleading. As originally drafted, SB 2 would have mandated that POST adopt any recommendation that the Advisory Board made if there was any evidence supporting the recommendation. 

Heightening the legitimate concerns of officers, SB 2 contained vague and over-broad definitions of “serious misconduct” and the composition of the Advisory Board guaranteed that officers would not receive a fair evaluation. While POST’s independent judgment has been restored, the final version of SB 2 still provides an Advisory Board where seven of nine members lack any subject matter knowledge of police practices and any impartiality. For example, four of the board members are made up of community activists focusing on police misconduct and family members who are victims of “police violence” (an inherently subjective term). 

SB 2 creates significant changes for peace officers, but it should not give you nightmares. PORAC, David E. Mastagni, Tim Talbot, and other law enforcement stakeholders throughout California worked tirelessly to secure vital amendments. Although SB 2 will become law, our victories in the legislative process will help ensure the due process rights of officers throughout California. 

Decertification Process 

The nine-member Advisory Board is comprised of the following: 

· 1 Current or former officer with command experience. 

· 1 Current or former officer with management rank experience in internal affairs. 

· 2 Members from the public with experience working at nonprofit or academic institutions on issues related to police accountability. 

· 2 Members from the public with experience working at community-based organizations on issues related to police accountability. 

· 2 Members from the public, with strong consideration given to individuals who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer. 

· 1 Attorney with experience involving oversight of peace officers. 

Only the first two members can be current or former officers, which means that most of the people who will recommend pulling your certification have never been in a police uniform! 

However, the Advisory Board’s recommendation is just that, a recommendation. POST remains as the final decision maker as to whether your certification will be revoked. PORAC secured several last minute, crucial amendments. The amendments provide that the POST Commission must make its own determination based on the entire record and not just the Advisory Board’s recommendation. Moreover, the Advisory Board’s recommendation must be supported by clear and convincing evidence. Revocation also requires a 2/3 super majority vote of the POST Commission. PORAC also secured an amendment that requires the Advisory Board members to complete a 40-hour decertification training course, as developed by POST, which will minimally include the decertification process, internal investigations, evidentiary standards, use of force standards and training, and local disciplinary processes. 

SB 2 originally allowed the Advisory Board to retroactively substitute their judgment for prior determinations made at every level of the government and our court systems. The final version still allows the Advisory Board to reconsider past critical incidents in which an officer is cleared of serious misconduct, but significantly narrows the Advisory Board's retroactive jurisdiction to acts of dishonesty, sexual assault and certain deadly force applications.

The original bill also provided that the Advisory Board was not constrained by any prior adjudications or appeals of allegations of “serious misconduct.” The final version still includes this language but adds an important phrase providing that the legal principles of collateral estoppel will apply. This means that if there was a factual or legal adjudication on the merits clearing the officer in a prior proceeding, that finding will be binding on the POST Commission. 

Bane Civil Rights Act 

The Bane Act is a statute that was intended to address hate crimes by providing enhanced liability, such as attorney fees with Lodestar multipliers which can approach $1000.00/hr, for intentional violations of civil rights. Under the Bane Act, a Plaintiff must also prove the officer “intentionally interfered with or attempted to interfere with civil rights by threats, intimidation, or coercion.” SB 2 would replace this requirement with essentially a negligence standard, i.e., general intent to engage in the conduct without the intent to do anything wrongful. 

Although some legislators wanted to eliminate qualified immunity, they cannot because qualified immunity only apply to federal civil suits, e.g. 1983 actions.  Instead the bill eliminated 3 rarely claimed state law providing immunity. Federal qualified immunity remains.  More importantly, if an officer is sued for conduct arising from the course ans scope of their employment, the public entity must provide the officer a defense and indemnity. 

Conclusion

While the law enforcement community welcomes accountability and transparency, these goals cannot be accomplished by violating due process and creating an unfair, biased system designed to unfairly remove officers from their chosen profession. The struggle to retain basic due process and fairness for law enforcement is not over.  The POST Commission will be vested with authority to promulgate regulations clarifying the scope of this bill, including the right to representation during POST investigations.  The Legislature will also likely pass clean up legislation next session to clarify ambiguities and correct drafting errors.   Mastagni Holstedt, A.P.C. will continue working with PORAC and other California law enforcement stakeholders to protect the rights of officers statewide.

Courts Hand Victory to Public Pension Systems at the Expense of Public Employees

 In Wilmot v. Contra Costa County Employees' Retirement Assn. (2021) 60 Cal.App.5th 631, review denied (May 12, 2021), the California Court of Appeals for the Second District upheld the constitutionally of a portion of the Public Employees’ Pension Reform Act (PEPRA) that mandates the forfeiture of pension benefits if a public employee is convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” (Gov. Code § 7522.72.)

Jon Wilmot, an employee of the Contra Costa County Fire Protection District, submitted his paperwork for retirement in December 2012, prior to PEPRA taking effect on January 1, 2013. In April of 2013, the Contra Costa County Employees’ Retirement System (CCERA) officially approved his application for retirement. However, at some point, it was discovered that Wilmot had been stealing property and equipment from the Fire Protection District for over 13 years. Charges were filed against him in 2013, and he entered a no contest plea in 2015. As a result, CCERA reduced Wilmot’s monthly pension benefits in accordance with PEPRA’s forfeiture law.

In a scathing opinion, the Court of Appeal held that the forfeiture provision was both constitutional and was properly applied to Wilmot. First, Wilmot argued when PEPRA took effect in January 2013, he was no longer a “public employee” because he worked his final day and submitted his retirement paperwork in December 2012.  The Court of Appeal disagreed, stating that an employee’s retirement application is pending until approved by a retirement board. When PEPRA took effect, Wilmot’s application was submitted, but CCERA did not approve his application until April 2013.  Thus, he was subject to PEPRA’s forfeiture provision.

The Court also rejected Wilmot’s argument that PEPRA’s forfeiture provision violated the contract clause of the California Constitution. Citing to the California Supreme Court’s opinion in Alameda County Deputy Sheriff's Assn. v. Alameda County Employees’ Retirement Assn. (2020) 9 Cal.5th 1032 (Alameda), the Court acknowledged that to be constitutional, modifications of public pension plans must relate to the operation of the plan and intend to improve its function or adjust to changing conditions. Previously, Wilmot’s attorneys had unsuccessfully argued before the Second District Court of Appeals in Hipsher v. Los Angeles County Employees Retirement Assn. (2020) 58 Cal.App.5th 671 (Hipsher) that the forfeiture provision was an unconstitutional impairment of the contract clause. The Wilmot Court relied on the analysis in Alameda and Hipsher, stating that the primary objective in providing pensions to public employees is to “induce competent persons to enter and remain in public service.” Therefore, “withholding that inducement if an employee’s performance is not faithful” (such as Wilmont who pled guilty to embezzling County property) is an “entirely logical response” to improve the function of a public pension plan. The Court opined:  

An employee who draws public pay while stealing public property, or embezzling public funds, or who uses public facilities or equipment to run an illegal business (which is what occurred in Hipsher), is the antithesis of a ‘faithful’ servant of the public trust. When misconduct turns into outright criminality, it is beyond dispute that public service is not being faithfully performed. To give such a person a pension would further reward misconduct.

Finally, the Court rejected Wilmot’s claim that the forfeiture statute was an “ex post facto law.” The court determined that civil forfeiture of benefits earned while committing a job-related crime was not unlawfully punitive but rather was a proper “remedial civil measure.” 

Two California Courts of Appeal have now upheld the constitutionality of PEPRA’s forfeiture statute in light of the Supreme Court’s reasoning in Alameda. Given these rulings, plaintiffs and their attorneys should carefully consider whether additional challenges to PEPRA should be brought. Bringing such challenges may risk transforming gray areas into black letter law that benefits employers and harms public employees.

Citizen Initiative Proposes Unconstitutional Restrictions on Unions’ First Amendment Rights

On August 14, a new citizen initiative was filed with the California Attorney General’s Office. The “Elijah McClain Police Accountability Act” (Initiative) contains a wide variety of proposals ranging from eliminating qualified immunity to restricting the rights of law enforcement unions. Although a number of the proposals are problematic, unconstitutional, and impractical, this blog post focuses specifically on the provisions restricting the First Amendment rights of “police unions.”    

The Initiative inaccurately asserts that “police unions have limited legal rights, and certainly no right to influence politics.” With that assumption, it proposes that:

A police union shall be compelled to dissolve if it uses funds to impact an election or the actions of an elected official by:  

i.                                     Donating to a candidate or a candidate’s campaign, or;

ii.                                 Donating to a Political Action Committee {PAC) or any other individual, group, or entity who intends to use the money to influence an election or a candidate, or;

iii.                Buying advertising space for the purpose of promoting or denigrating a candidate, a public referendum, or a bill, or for the purpose of promoting the repeal or alteration of an existing law.

As an initial point, there are very few “police unions." Instead, most law enforcement organizations in California are employee associations recognized as the exclusive bargaining representative for sworn personnel in that police department. These associations are protected by the Meyers-Milias-Brown Act (MMBA), which was modeled after the National Labor Relations Act (NLRA) and grants collective bargaining rights to California’s local government employees. While these associations perform a wide variety of services for their members and the community, their main function is to collectively bargain on behalf of their members.

More importantly, the proposals in the Initiative would violate unions’ First Amendment rights. The U.S. Supreme Court held in Citizens United v. Federal Election Commission (2010) 558 U.S. 310 that corporations, including unions, have First Amendment rights. This includes the right to make campaign expenditures. Prohibiting unions from endorsing candidates and legislation or from contributing to campaigns is a clear violation of these First Amendment rights. Similarly, requiring unions to dissolve for engaging in First Amendment protected activity is unconstitutional.

While Mastagni Holstedt supports increased transparency in politics, violating unions’ First Amendment rights is not an appropriate or effective solution.

Regents of the University of California Have Immunity Against Lawsuit Challenging Employee Time Keeping Procedures

In Gomez v. Regents of University of California (2021) 63 Cal.App.5th 386, the Fourth District of the California Court of Appeals held that the Regents of the University of California have some immunity when it comes to California’s minimum wage laws. At issue in this case was whether the Regents —an independent governing body that oversees the state's colleges and universities—are a public employer, or whether the University is a public trust, as defined by the California Constitution, making them free to make internal decisions relating to wages and benefits given to its employees.

A former employee of the University of California, Guivini Gomez, alleged that due to the University’s time management policies she received below the state required minimum wage for all the hours she worked. While the Gomez’s hourly rate was above minimum wage, Gomez asserted that the University’s time keeping policies violated the law in two ways. First, they rounded the number of hours worked, which usually resulted in rounding down. And secondly, they automatically deducted thirty minutes for meal breaks, regardless if the employee was offered or took the break.

Gomez alleged that this practice violated the California Labor Code Sections 1194 & 1197, which require employers to pay the minimum wage “for all hours worked.” Gomez brought suit against the Regents seeking relief for unpaid wages and civil penalties under the Private Attorneys General Act (PAGA). In response, the Regents claimed they were exempt from any PAGA penalties because the Labor Code only applied to private sector employees, unless specifically stated otherwise. The trial court sided with the Regents agreeing that they were exempt from the Labor Code provisions, and therefore were not subject to any subsequent penalties under PAGA.

On appeal, the Gomez argued the Regents pay practices violated Wage Order No. 4, section 4 which requires minimum wage to be paid for “all the hours worked." In response, the Regents argued that they were exempt from the Wage Order because the Wage Order only specified that it applies to the state and its political subdivisions and the relevant Labor Code provisions, in its definition of employer, did not include the Regents.

The California Court of Appeals for the Fourth District upheld the decision by the trial court in favor of the Regents. The court held that under the California Constitution the Regents were considered a “public trust." This grants them “full powers of organization and government” and also gives them “general immunity from legislative regulation." While there are a number of exceptions to this immunity, the courts have consistently held that statutes regulating wages and benefits of employees are a matter of internal affairs. In coming to this decision, the Appeal’s Court leaned heavily on the precedent in Kim v. Regents of University of California (2000) 80 Cal.App.4th 160.

The court concluded that Regent’s time-keeping procedures are matters of internal affairs and don’t fall within any of the exceptions to the Regents’ constitutional immunity. The court regarded the Regents not to be a “public employer” as defined by the Wage Order No. 4. Instead, the University is “a separate arm of state government that is given constitutional power to govern its own internal affairs, such as the terms on which it employs its workers." This means these provisions are not binding on the University.

Although the court ultimately sided with the University, they did not conclude that state minimum wage laws do not apply to the Regents. Instead, the nuanced opinion points out that Gomez did “not allege the Regents set her hourly pay below the minimum wage." Instead, she challenged “certain time-keeping procedures” the Regents used. The court found that the way in which the Regents calculated the hours worked was a matter of internal governance and therefore not subject to the California Labor Codes or Wage Order in question.

Update on Legal Challenges to Mandatory Vaccinations

 States/ Local Governments Can Mandate Vaccinations

Over 100 years ago, the Supreme Court decided that states can mandate that their citizens get vaccinated. In Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, the Court upheld a local law in Cambridge, Massachusetts requiring inhabitants receive the smallpox vaccine. The Court’s ruling relied on the principles that an individual’s right to liberty and bodily autonomy is not absolute, and that states have the authority to take actions necessary to protect the health and wellbeing of their citizens (commonly referred to as states’ “police powers”).

 

The Supreme Court did not revisit government mandated vaccinations again until 1922 in Zucht v. King (1922) 260 U.S. 174. The Zucht Court held that mandating vaccines for only one group of people (in this case school children), did not violate individuals’ Fourteenth Amendment rights to due process or equal protection. This same logic would likely apply to a mandate that first responders or public safety officers be vaccinated, even if the same requirement is not applied to the general public.

More recently, multiple California appellate courts have upheld Jacobson and Zucht, ruling that when it comes to mandatory vaccinations, finding the need for public safety outweighs individuals’ rights to privacy or bodily autonomy. In Brown v. Smith (2018) 24 Cal.App.5th 1135 and Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, California appellate courts upheld Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for school children. Thus, the courts limited the exemptions available (once full FDA approval is received) to: 1) a sincerely held religious belief, practice or observation; or 2) a medical accommodation.

There has been one court decision dealing with mandatory COVID-19 vaccines. In Bridges v. Houston Methodist Hospital (S.D. Tex., June 12, 2021, No. CV H-21-1774) 2021 WL 2399994, Houston Methodist Hospital implemented a policy requiring staff to be vaccinated or face termination. A number of employees sued claiming wrongful termination after they refused to be vaccinated. The court cited Jacobson as proof that an employer can mandate vaccines. The court also dismissed the employees’ arguments that the COVID-19 vaccine was distinguishable because it had only received “emergency” approval. Ultimately, the court concluded: “Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else... Every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain.” (Id. at p. *2.) It is important to note that this case dealt with a private employer. However, the rationale is applicable to public employers and employees.

In another pending federal lawsuit, correctional employees brought wrongful termination claims in challenging a directive requiring first responders to be vaccinated as a condition of employment unless a reasonable accommodation is approved. (Legarreta v. Macias, Case 2:21-cv-00179-MV-GBW (D.N.M., filed Feb. 28, 2021).)  The court denied the employees request for a restraining order on March 4, 2021, and the Defendants have filed a motion to dismiss the case for failure to state a claim and based on qualified immunity.  The motion to dismiss is fully briefed and a ruling could come as early as next week. 

It is well-settled law that state/local governments—and by extension government employers—can mandate that citizens be vaccinated. Further, the court rulings to date have applied these legal principles to mandatory COVID-19 vaccines found in favor of the employer. However, this authority is not absolute. Government employers may still be required to make accommodations for individuals with sincere religious beliefs or medical conditions that make vaccination a risk. The exemptions are discussed further below.

Right to Bargain over the Impacts and Effects of Mandatory Vaccinations

While mandating vaccination is generally legal, the impacts and effects of such a decision fall within the scope of bargaining. PERB recently held the decision to adopt an influenza vaccination policy was outside the scope of representation because the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy. However, the University’s implementation of the vaccination policy constituted a unilateral change, in violation of HEERA, because the University was not privileged to implement the policy before completing negotiations over its effects. (Regents of the University of California (2021) PERB Decision No. 2783-H.) The University had not met and conferred in good faith before implementation of the policy.

Labor leaders should demand to bargain over the impacts and effects of any vaccination policy. And, if the failure to get vaccinated could lead to discipline, the policy itself may be subject to decision bargaining. Employers must provide notice and opportunity to meet and confer prior to mandating vaccines. Employers can offer employees incentives to get vaccines, but it cannot be so large that it is coercive. 

 Right to Refuse Vaccination

A.         Food, Drug & Cosmetic Act under the Emergency Use Authorization (EUA)

The EUA requires employees be informed they have the right to refuse vaccination and must be given a fact sheet listing the health consequences of refusal, and of the alternatives to the product that are available and of their benefits and risks, amongst other notices.  However, the Acting Assistant Attorney General Office of Legal Counsel (OLC) refused to read this language as prohibiting public and private entities from requiring individuals to be vaccinated.

On July 6, 2021, the OLC issued a slip opinion addressing whether section 564 of the Food, Drug and Cosmetic Act prohibits Entities from requiring the use of a vaccine subject to and EUA. The slip opinion is not binding legal authority, but delivers a strong opinion favoring mandatory vaccines. Ultimately, the OLC concluded that section 564 does NOT prohibit public or private entities from imposing vaccination requirements, even when the only vaccines are those authorized under EUAs.

The argument the vaccines are “experimental” because they only have emergency authorization, and therefore cannot be mandated, is weak. EUA means the shot is safe enough for the public. Further CDC has also said vaccines approved under the EUA are “safe” an “effective.”

A least one court has already rejected the claim “that the injection requirement is forcing its employees to participate in a human trial because no currently-available vaccine has been fully approved by the Food and Drug Administration.” (Bridges v. Houston Methodist Hospital (S.D. Tex., June 12, 2021, No. CV H-21-1774) 2021 WL 2399994, at *2)  The court explained “Equating the injection requirement to medical experimentation in concentration camps is reprehensible. Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death. … [employees] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else. … If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain.” (Id.)

Moreover, we expect the FDA to issue full approval in the coming months. Therefore, this basis for an exemption is not likely to prevail. (See Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, at *1 (D.N.M. Mar. 4, 2021); Bridges v. Houston Methodist Hosp., No. 4:21-cv-01774, 2021 WL 2399994, at *1–2 (S.D. Tex. June 12, 2021.)

B.         Medical Accommodations under the ADA/ FEHA

An individual that suffers adverse medical consequences—such as an allergic reaction—to vaccinations may be entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.) and the California Fair Employment and Housing Act (“FEHA”) (Gov.  Code § 12900 et seq.)

The ADA and FEHA require that employers to provide a reasonable accommodation for an employee’s disability. Such disability may include an inability to be vaccinated due to a serious medical condition. The employee must first put their employer on notice and request accommodation to begin an interactive process. In addition, employees must put forward medical documentation to substantiate their claim of a disability.

Moderate reactions to vaccines are probably not legally sufficient. For example, in Hustvet v. Allina Health System (8th Cir. 2018) 910 F.3d 399, 411, the Eighth Circuit affirmed a judgment against an employee who had “never been hospitalized due to an allergic or chemical reaction [from a vaccine], never seen an allergy specialist, . . . [or] ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.” Therefore, this claim will only be available to individuals who suffer serious, documented medical consequences from being vaccinated.

C.         Religious Accommodations Under Title VII

Individuals with sincerely held religious objections to the COVID-19 vaccine may also seek a religious accommodation to a vaccination requirement under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” (42 U.S.C. § 2000e-2(a)(1).)

An employer must make reasonable accommodations for employees sincerely held religious beliefs “unless an employer demonstrates that he is unable to reasonably accommodate… without undue hardship on the conduct of the employer’s business.” (42 U.S.C. § 2000e(j).) Thus, an employer is obligated to try to reasonably accommodate an employee’s religious beliefs to the extent it does not cause an undue hardship on the business, and failure to do so violates Title VII. This does not mean that the employer is required to offer an employee his or her preferred accommodation. Rather, the accommodation offered simply must be reasonable. (Bruff v. N. Miss. Health Servs., Inc. (5th Cir. 2001) 244 F.3d 495, 501.)

In conclusion, public employers will generally be able to mandate that employees receive vaccinations if they deem it necessary for public health and safety. Individuals for whom vaccination poses a serious health risk should be able to obtain an exemption under the ADA/FEHA. Further, individuals that hold sincere religious objections to vaccinations may be able to obtain a reasonable accommodation from their departments. Lastly, at a minimum, the impacts and effects of such policies are subject to bargaining, including the consequences of refusal.