Watch: David E. Mastagni Testifies Against Bill to Limit POBR Remedies (SB 1088, Bradford)

On April 26, David E. Mastagni testified in front of the Senate Public Safety Committee in opposition of S.B. 1088.  The Bill is modeled after recommendations to weaken peace officer due process rights issued by Ronald Yank and Barry Winograd, David's Labor Law professor at U.C. Berkeley School of Law.  In essence, SB 1088 would create a balancing testing which would deny officers a remedy for POBR violations if the seriousness of the allegations outweighs the significance of the POBR violation.  David pointed out that most POBR remedies are simply to exclude improperly obtained evidence or provide officers access to improperly withheld materials.  Ironically, the Bill would incentivize IA investigators to cut corners and violate procedural rights by eliminating agency accountability. 

 

 

 

SB 1088 Background

SB 1088 was introduced by Senator Bradford and is an act to add Section 3309.6 to the Government Code which relates to public employment and law enforcement labor relations. The bill provides:

3309.6. (a) A procedural violation of this chapter that an administrative hearing officer, board, or arbitrator, acting pursuant to their appropriate authority, deems to be without a substantive effect shall not be the basis for reversing or modifying discipline of a public safety officer.

(b) For purposes of this section, “without a substantive effect” includes, but is not limited to, the following:

(1) Procedural errors, including the admission or exclusion of evidence, unless the error adversely affects the substantial rights of the public safety officer to an extent that constitutes fundamental unfairness.

(2) Harmless errors, including technical errors, that are not so damaging and prejudicial as to change the outcome of an investigation or a decision.

(3) With consideration of the totality of the dispute, evidence of misconduct is significant enough to outweigh a claim that an error was substantial enough to justify a change in discipline.

April 26, 2022, Senate Testimony

Senator Bradford introduced the bill, stating existing law, the Public Safety Officers Procedural Bill of Rights Act, grants a variety of employment rights and protections to public safety officers, as defined, including with respect to investigations, interrogations, and disciplinary procedures. "This bill would prohibit a procedural violation of the act deemed to be without substantive effect, as specified, from being the basis for reversing or modifying discipline of a public safety officer," Bradford explains.

Former police union lawyer Ron Yank and U.C. Berkeley Labor Law professor and arbitrator Barry Winograd testified in favor of S.B. 1088, which was modeled after their recommendations for curtailing POBR rights.  Both are members of the Law Enforcement Study Group.  They co-authored a California Law Review in August of 2020 titled "Reforming Law Enforcement Labor Labor Relations", containing a host of infringements on officers' labor rights.

Ronald Yank testified, “When a peace officer gets off on a technicality it looks horrible to the public.  After George Floyd and other atrocious incidents there was a back lash against arbitration … and when an officer gets off on a technicality it looks like holy heck to the public.”  Yank focused his criticisms on the statute of limitations in POBR.  Ironically, the statute of limitations, which runs one year from when an agency receives a citizen complaint, actually promotes accountability by forcing agencies to complete investigations rather than allowing unresolved allegations of misconduct to linger indefinitely. 

Similarly, Barry Winograd, an arbitrator and mediator, testified that "after George Floyd was killed we thought what could we do." Referring to S.B. 1088 as a harmless error bill, he thanked Senator Bradford for giving consideration to their proposal.  He stated the Bill would "fill the gap" in enforcement when POBR is presented in arbitration by barring reinstatement for procedural violations where there is no loss of a substantial right and prevents "burying wrongdoing", i.e. excluding improperly obtained evidence, behind procedural technicalities. 

In his testimony, David E. Mastagni refuted the claim POBR allows officers to get away with misconduct on a technicality and provided a more accurate picture of what POBR does.  He explained that POBR primarily provides procedural rights during an investigation that mirror union rights, e.g.  notice, right to a representative, and the right to record, access to documents, etc. He explained that the existing remedies are already limited primarily to suppression of ill-gotten statements/evidence (i.e. the exclusionary rule) and access to exculpatory materials wrongfully withheld by the investigators.  He described prior PORB cases where the court suppressed improperly obtained statements but otherwise allowed the cases to proceed, and a published case, Sacramento POA v. Venegas, in which he won access to negative comments in an officers' personnel file.

He explained that SB 1088 is unnecessary because the Supreme Court already established that its an abuse of discretion to overturn discipline or even suppress an officer’s statement over a minor violation of the POBR.  Williams v. City of Los Angeles (1988) 47 Cal.3d 195.  The Court applied a “but for” analysis when considering the violation, ie would the agency reach the same decision without the violation.  The court also held that even suppression is not appropriate when the officer whose right was violated was not prejudiced, but suppression could be an appropriate remedy in some cases as an effective deterrent.

David explained, SB 1088 goes much further than Williams by prevent a trier of fact from remedying POBR violations whenever evidence of misconduct is significant enough to outweigh a claim that an error was substantial enough to justify a change in discipline.”  Williams looked at the effect of violation, not a balancing of the significance of the misconduct against the magnitude of the POBR violation.  The balancing is new and would create a perverse “ends justify the means” incentive for investigators that would be unacceptable in any other context.  No one would support allowing police investigators to violate Miranda or 4th Amendment rights just because investigators believed a suspect committed a serious crime. 

The more serious the matter, the more important it is for investigators follow the rules and afford people their rights.  He stated, "The more serious the matter, the more important it is for investigators follow the rules and afford people their rights. This bill goes too far." Eliminating the trier of facts ability to exclude improper evidence will incentivize interrogation violations by eliminating agency accountability.  "We should not be encouraging any law enforcement investigators to cut corners and violate rights in any context.  The Legislature should foster a police culture of respecting people’s rights." 

Finally, David addressed Senator Bradford directly, pointing out he already enacted SB 2 to decertify officers found to have committed serious misconduct and SB 2 does not afford officers any POBR rights.  As such, POBR should not be diluted with a balancing test. 

Watch entire hearing over SB 1088 below:

 

After Issuing a Published Decision Rejecting DOL Guidance to Exclude HIL Pay from Overtime, District Court Approves Backpay Settlement for Richmond Firefighters

In a case of first impression, the federal District Court for the Northern District of California issued a published decision declining to follow a  Department of Labor (DOL) Regulation (29 C.F.R. section 778.219(a)(4)) enacted in December of 2019 to expressly exclude holiday in lieu (HIL) pay from the overtime rate. (Padilla v. City of Richmond. (N.D. Cal. 2020) 509 F.Supp.3d 1168.)  Because public safety employees must work their normal schedule regardless of holidays, they often receive extra pay instead of leave.  The DOL issued this Regulation to reverse a series of California district court decisions, and Padilla is the first and only decision addressing whether the courts must "defer" to or follow this DOL Regulation.  As a result, on April 28, 2022, the Court approved our FLSA collective action settlement totaling $464,520.51 for 85 Richmond firefighters claiming the City underpaid their overtime by excluding HIL pay.

 

On July 10, 2020 Mastagni Holstedt APC filed Padilla v. City of Richmond, seeking back pay for the underpayment of overtime. Plaintiffs’ complaint asserted the City was required to include their holiday-in-lieu payments in the “regular rate of pay” for the purposes of overtime payment. Employers typically argue FLSA section 207(e)(2) excludes holiday-in-lieu payments. However, numerous California federal district courts, including cases handled by Mastagni Holstedt APC have determined section (e)(2) does not exclude holiday-in-lieu payments. 

The City filed a motion to dismiss Plaintiffs’ complaint based on the Department of Labor’s “firefighter example” which took effect January of 2020.  The International Municipal Lawyers Association had successfully requested the DOL issue a Regulation determining public safety employees' holiday-in-lieu payments are excluded from the regular rate notwithstanding the district court decisions to the contrary. With almost no analysis, the DOL adopted IMLA’s proposed language and added an example that holiday-in-lieu payments made to firefighters working a 48/96 schedule can be excluded – “firefighter example.” The new Regulation stated:

An employee is scheduled to work a set schedule of two 24–hour shifts on duty, followed by four 24–hour shifts off duty. This cycle repeats every six days. The employer recognizes ten holidays per year and provides employees with holiday pay for these days at amounts approximately equivalent to their normal earnings for a similar period of working time. Due to the cycle of the schedule, employees may be on duty during some recognized holidays and off duty during others, and due to the nature of their work, employees may be required to forgo a holiday if an emergency arises. In recognition of this fact, the employer provides the employees holiday pay regardless of whether the employee works on the holiday. If the employee works on the holiday, the employee will receive his or her regular salary in addition to the holiday pay. In these circumstances, the sum allocable to the holiday pay may be excluded from the regular rate. (29 C.F.R. section 778.219(a)(4))

Based on the new “firefighter example,” the City filed a motion to dismiss Plaintiffs’ complaint on September 22, 2020 arguing the court must defer to the DOL.  So called Chevron deference is a judicial doctrine wherein courts defer to administrative agency interpretations of ambiguous statutes and in some cases ambiguous interpretations of their own regulations.  The Supreme Court has increasing called into question this practice, scrutinizing whether an ambiguity actually exists, and if so still requiring the agency interpretation to be reasonable and persuasive.

Plaintiffs' counsel, David E. Mastagni successfully opposed the motion arguing the court should not simply defer to the new DOL regulation, which attempted to replace reasoned jurisprudence of the California district court with the then-DOL administration's policy preferences.   Plaintiffs argued the rule-making process was defective due to lack of notice, and that the exclusion found in section 207(e)(2) of the FLSA unambiguous did not permit Defendant to exclude the payments. Plaintiffs further asserted that even if the statute was ambiguous, the firefighter example within the Regulation was not entitled to any deference because it conflicted with the Regulation it sought to exemplify.  

On December 23, 2020, Judge Phyllis J. Hamilton denied Defendant’s motion to dismiss reasoning that although 207(e)(2)’s language was ambiguous, the “firefighter example” was only entitled to deference to the extent it had the “power to persuade.” The court found that the “firefighter example” was not persuasive because it contradicts section 207(e)(2)’s requirement the payment is “made for occasional periods when no work is performed.” Similarly, the “firefighter example” conflicts with the regulation, which requires employees be “entitled” to paid leave and “forgo” the use of the leave. 

This published decision can be cited by firefighters and peace officers throughout the United States to seek the inclusion of HIL pay in their Regular Rate of Pay used to calculate overtime.  In addition to protecting HIL pay, the decision also demonstrates that courts do not blindly defer to administrative regulations and guidance.  As Justice Gorsuch noted in Kisor v. Wilkie (2019) 139 S.Ct. 2400, 2441, “[a]gency personnel change over time, and an agency's policy priorities may shift dramatically from one presidential administration to another.”  Here, a change in the DOL administrations should not change the meaning of the FLSA.  Thankfully, the Court recognized the outcome-based Regulation was not entitled to deference. 

The inclusion of holiday pay in FLSA overtime is a complex issue which also requires close consideration of the governing labor contracts and pay practices.  The Richmond Firefighters appreciate the Court's thoroughness in examining these legal issues and the City's willingness to reach an amicable resolution after the Court ruled on the DOL Regulation.