New 2020 Labor & Employment Laws for Public Agencies
Shauna Amon Writes About Public Employer New Laws in PublicCEO
By Shauna Amon
California and federal courts, along with the state’s Public Employer Relations Board, handed down a number of decisions last year that will impact public employers and employees in 2020 and beyond.
From tackling questions about a former city manager’s qualified immunity with respect to First Amendment claims to whether a police officer was entitled to an administrative hearing after being demoted during a probationary promotion period, we explore the most impactful court and administrative decisions of 2019 below.
No Qualified Immunity for Police Officers in Suit Filed by Rally Attendees
In Hernandez v. City of San Jose, a case where politics and the law collide, the U.S. Ninth Circuit Court of Appeals affirmed a lower court’s denial of qualified immunity for police officers and allowed attendees of a presidential campaign rally to proceed with their lawsuit against the San Jose Police Department.
Prior to then-candidate Donald Trump’s June 2016 rally in San Jose, the Police Department knew that rallies in other cities had sparked violent counter protests. The Department prepared for the rally by accepting officer and vehicle support from other departments and provided many officers with riot gear.
The plaintiff, Juan Hernandez, and other rally attendees sued the Department after the rally, alleging that officers violated their due process rights when officers directed the attendees through a single exit into a crowd of “violent counter-protesters.” The City claimed qualified immunity for the officers’ actions.
Qualified immunity protects government officials from civil lawsuits so long as their conduct does not violate “clearly established” rights that a reasonable person would have known about. An exception exists, however, if an officer places a person in more danger than the person would have otherwise experienced. For this to apply, an officer must have taken affirmative actions to create a specific and foreseeable danger and the officer must have acted with “deliberate indifference.”
Ultimately, the Ninth Circuit found the Police Department not only knew about the potential risk of violence and assault but also acted with deliberate indifference to these dangers. As such, the court allowed the attendees to move forward with their lawsuit but noted that the officers still had the opportunity to re-assert their defense of qualified immunity later in the litigation.
(Note: This case is still developing.)
Court Denies Administrative Appeal for Sergeant’s Probationary Promotion Release
When the plaintiff in Conger v. County of Los Angeles was promoted from sergeant to lieutenant by the Los Angeles County Sheriff’s Department, his promotion was subject to a 6-month probationary period.
A few months into this appointment, the Department informed the plaintiff he was under investigation for actions that occurred prior to his promotion. He was relieved of duty, placed on administrative leave and ultimately released from his probationary position after an investigation found that, while he was a sergeant, he failed to report a use-of-force or instruct his subordinates to do so. The plaintiff was then returned to his former rank of sergeant.
The plaintiff’s request for an appeal hearing under the Public Safety Officers’ Procedural Bill of Rights was internally denied. Government Code section 3304(b) specifies that no punitive action or denial of promotion can be taken against a public safety officer who has successfully completed the probationary period without the opportunity for administrative appeal.
The plaintiff then petitioned the court, but the trial court denied his petition. The Second District Court of Appeal affirmed the trial court’s ruling.
Because the plaintiff was released before the completion of his probationary period, the court held he did not have a vested property interest in the lieutenant position. The court also determined that he was not entitled to an administrative appeal because he did not provide evidence that he would face further punitive action from the release of the investigation report.
As such, the court found that the Department was not required to provide the plaintiff with an administrative appeal based on his release from a probationary position.
Former City Manager Violated Former Police Chief’s First Amendment Rights
After Doug Greisen, a veteran police chief in the City of Scappoose, Oregon, discussed concerns about the City’s accounting and budgeting practices — specifically with how the city manager handled invoices — with other city officials, the city manager initiated three investigations into the police chief.
The city manager then suspended the police chief, placed him on an indefinite leave and prevented him from speaking publicly, even as the city manager continued to release information about these investigations to the media. After a city review committee recommended the police chief’s suspension be retracted, the city manager resigned. His replacement, however, subsequently fired the police chief.
The former police chief sued, alleging the former city manager violated his First Amendment rights by subjecting him to adverse employment actions in retaliation for his protected speech. A jury found in the plaintiff’s favor and the Ninth Circuit affirmed the ruling.
The court held that the plaintiff had provided sufficient detail about his speech to establish that it substantially involved a matter of public concern. When he voiced his concerns about the former city manager, the plaintiff did so as a private citizen rather than a public employee.
The Ninth Circuit also found that the former city manager wasn’t entitled to qualified immunity, because it was clearly established that the misuse of public funds was a matter of public concern.
It’s the Date a Personnel Record is Requested, Not Created, that Matters Under SB 1421
A Court of Appeal held that, under Senate Bill 1421, certain peace officer personnel records created before Jan. 1, 2019 are considered public records.
Under SB 1421, the public can obtain peace officer personnel records through a California Public Records Act request, specifically including those relating to the shooting of a firearm at a person, use of force that results in death or great injury, or a sustained finding that a peace officer either sexually assaulted another or was dishonest.
Public agencies have been involved in a number of lawsuits since SB 1421’s enactment to determine if the law applies to records created before or after 2019. In the first published decision to address the issue, the First District Court of Appeal held that applying the law to pre-2019 records does not make the new law impermissibly retroactive.
Rather, the court said that, “Although the records may have been created prior to 2019, the event necessary to ‘trigger application’ of the new law — a request for records maintained by an agency — necessarily occurs after the law’s effective date.” The case makes clear that it is the date the personnel record is requested, not the date that the record was created, that matters when applying SB 1421’s provisions.
PERB Says Agency Can’t Deny Longevity Differential to Represented Employees
In 2006, the Contra Costa County Board of Supervisors granted a longevity differential that consisted of a 2.5 percent pay increase to management, exempt and unrepresented county employees with 15 years of service. The union for the Fire Management Unit of the Contra Costa Fire Protection District demanded the same longevity differential, but their demand was denied.
Two years later, the Board adopted another resolution providing the same longevity differential to all unrepresented management employees for the District. The only employees who were not entitled to this longevity differential were those represented by the union. After failing to resolve the issue, the union filed an unfair practice charge alleging the District interfered with union and employee rights and discriminated against members based on protected activity.
The Public Employment Relations Board determined the District violated the Meyers-Milias-Brown Act and found that the District’s bargaining conduct was discriminatory because represented and unrepresented employees were treated differently. PERB also found the District interfered with the union and employees’ protected rights even though no bad faith was alleged.
With Decision No. 2632, the District was ordered to pay each eligible current and former member of the union the same longevity differential for 15 years of service including a retroactive date for when it was granted to these employees plus interest.
Employee’s Right to Union Representation Expanded Where Written Statements are Involved
The San Bernardino Community College District installed a tracking device on a community service officer’s work vehicle after receiving reports the officer was leaving his assigned patrol area.
When the device’s data confirmed the officer was leaving his assigned post, the officer’s supervisor questioned him regarding his whereabouts. The officer asked for a union representative, at which time the supervisor said he would not ask any further questions, but did ask the officer to provide a written statement.
In Decision No. 2599, PERB held an employee has a right to a union representative before submitting a written statement as part of an investigatory interview. PERB explained that the same reasons for providing a union representative during an oral interview exist when an employee is asked to provide a written statement.
This article first appeared in PublicCEO.com on Jan. 21, 2020. Republished with permission.
