Runyon v. Trustees, Cal. State Univ. (SC S168950 5/3/10)
The California Supreme Court has held that under the Whistleblower Protection Act (WPA) (Gov. Code, § 8547 et seq.), a CSU employee has the right to file a lawsuit in superior court if he or she is dissatisfied with CSU's internal decision.
This marks the third supreme court case interpreting similar provisions of the WPA. The WPA has separate provisions for State of California employees, University of California employees, and California State University Employees. Each provision has now been tested before the Supreme Court. (See also State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 (State employees); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 (UC employees). The Court holdings are narrow and based on the statutory language at issue - so there really isn't much applicability beyond the WPA. About the only thing that can be said of these cases is that whoever in the Legislature drafted the WPA did an exceptionally poor job. Let's hope the confusion wil finally end with this decision.
http://www.courtinfo.ca.gov/opinions/documents/S168950.PDF
Monday, May 3, 2010
Thursday, April 22, 2010
Review Granted in Harris v. City of Santa Monica
Harris v. City of Santa Monica (2009) 106 Cal.Rptr.3d 6 (SC S181004 review granted 4/22/10)
The California Supreme Court has granted review in this case. The court of appeal had reversed a judgment in favor of an employee in a pregnancy discrimination case under the California Fair Employment and Housing Act (“FEHA”). The court of appeal held that the trial court erred by failing to instruct the jury with a “mixed-motive” instruction that might permit an employer to avoid liability if it could show that it would have taken the same action even absent any unlawful motive. Instead, the trial court used the “motivating factor” instruction which did not provide the employer with a complete defense.
The petition for review was just granted. The Supreme Court has not made public the question on review. However, the Court may address the question of whether a complete “mixed motive” defense exists under the FEHA.
The California Supreme Court has granted review in this case. The court of appeal had reversed a judgment in favor of an employee in a pregnancy discrimination case under the California Fair Employment and Housing Act (“FEHA”). The court of appeal held that the trial court erred by failing to instruct the jury with a “mixed-motive” instruction that might permit an employer to avoid liability if it could show that it would have taken the same action even absent any unlawful motive. Instead, the trial court used the “motivating factor” instruction which did not provide the employer with a complete defense.
The petition for review was just granted. The Supreme Court has not made public the question on review. However, the Court may address the question of whether a complete “mixed motive” defense exists under the FEHA.
Thursday, March 25, 2010
9th Circuit: Donning/Doffing Police Uniforms and Gear Not Compensable
Bamonte v. City of Mesa (9th Cir. 08-16206 3/25/10)
The 9th Circuit has just issued its long awaited decision in Bamonte v. City of Mesa. Police officers employed by the City of Mesa (City) argued that they should be compensated under the FLSA for time spent donning and doffing. The district court’s granted summary judgment in favor of the City, finding that the activites were not compensable because officers had the option of donning and doffing their uniforms and gear at home. In a 2-1 decision, the 9th Circuit agreed and affirmed the district court’s judgment.
The 9th Circuit has just issued its long awaited decision in Bamonte v. City of Mesa. Police officers employed by the City of Mesa (City) argued that they should be compensated under the FLSA for time spent donning and doffing. The district court’s granted summary judgment in favor of the City, finding that the activites were not compensable because officers had the option of donning and doffing their uniforms and gear at home. In a 2-1 decision, the 9th Circuit agreed and affirmed the district court’s judgment.
Friday, February 5, 2010
Public Employer Can Meet and Confer Over Union-Sponsored Ballot Initiative
DiQuisto, et al. v. County of Santa Clara, et al. (Cal. Court of Appeal, 6th Appellate Dist., Case No. H032345)
On January 22, 2010, the Sixth District Court of Appeal issued an important decision affirming that Santa Clara County officials did not violate constitutional limitations against governmental campaign spending when, in collective bargaining, they encouraged employee unions to withdraw their support of a 2004 ballot initiative. If enacted, the initiative would have given private arbitrators the authority to make the final determination on wages, hours, and other working conditions for affected bargaining units.
Factual Summary
In early 2004, three Santa Clara County labor unions agreed to sponsor a local initiative measure for the November 2004 ballot. The initiative would have amended the County’s charter to provide for binding interest arbitration as a means of resolving labor disputes between the County and unions representing nurses, correctional officers, and deputy district attorneys. Interest arbitration is a process in which a private arbitration panel determines the terms and conditions of a new collective bargaining agreement when negotiations between an employer and employee organization reach impasse, a function typically performed by a public agency’s governing body.
On June 23, 2004, the interest arbitration initiative qualified as “Measure C” for the November ballot. Prior to that, the County discussed the initiative in contract negotiations with a number of other employee unions. In negotiations with two of the unions that sponsored Measure C, the County’s proposals included one that would require them to withdraw their support for the initiative. The County further proposed that the unions agree not to initiate or support efforts to place binding interest arbitration on the ballot in the future. Both unions rejected these proposals. Ultimately, the County and the unions entered into MOUs that did not refer to the initiative.
In addition to discussing Measure C in collective bargaining, the County took affirmative steps to oppose the initiative. Acting through its board of supervisors, the County placed two counter-measures on the same ballot. In November 2004, Measure C was defeated at the polls, along with the County’s counter-measures.
The controversy surrounding Measure C boiled over into court. In June 2004, several individuals filed a taxpayer suit against the County and certain County officials. In their complaint, the plaintiffs accused the County of improperly using public funds for partisan electoral purposes in its bargaining with the unions over Measure C. The plaintiffs also challenged an email sent by a member of the County’s board of supervisors to approximately 1,500 individuals, which encouraged recipients to educate themselves about the proposed charter amendments and attached a copy of a newspaper editorial urging a “no” vote on Measure C and a “yes” vote on the County’s counter-measures. After a four-day trial, the superior court issued a statement of decision, ruling in the County’s favor as to all causes of action. The plaintiffs appealed.
The Court of Appeal’s Decision
In a 44-page opinion, the Sixth District Court of Appeal, by majority panel, affirmed the superior court’s decision in its entirety.
Initially, the Court of Appeal held that it was proper for the County to discuss Measure C in collective bargaining under the Meyers-Milias-Brown Act, the state law governing public sector labor relations. The court explained that, under the MMBA, “although binding interest arbitration is not a mandatory subject of contract negotiations, it is a permissive subject about which the parties properly may meet and confer.” The court then noted that in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, the California Supreme Court recognized that “the electoral process and MMBA can coexist” and that this reasoning, by extension, “undercuts plaintiffs’ assertion that collective bargaining and the initiative process are mutually exclusive.”
The Court of Appeal next considered whether the County’s conduct constituted impermissible partisan campaign activity under Stanson v. Mott (1976) 17 Cal.3d 206. The court noted that under Stanson, a public agency may not expend public funds to promote a partisan position in an election campaign, absent express legislative authorization. The court explained that this prohibition stemmed from “the fundamental precept” that “government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.” The court clarified, however, that Stanson does not preclude a government entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure.
The Court of Appeal concluded that the County’s conduct in collective bargaining constituted permissible informational activity, rather than partisan campaign activity prohibited under Stanson. In reaching this conclusion, the court relied on the fact that the County’s conduct in discussing the unions’ non-support of Measure C did not constitute “typical campaigning activity,” because it occurred in the context of collective bargaining, rather than a more public setting. The court also noted that the “style and tenor” of the County’s proposals was “not at all comparable to traditional campaign material” in that the proposals “were framed in the dispassionate language of contract, not in the exhortatory tone of persuasion.” Further, the court pointed out that the County’s conduct preceded the measure’s qualification for placement on the ballot and, moreover, was “intended to sway the unions, not the voters.”
The court reached a similar conclusion with respect to the email sent to the public by a member of the board of supervisors, finding the email to be purely “informational.” The court also held that while the editorial attached to the supervisor’s email constituted express advocacy, the expenditure associated with its transmittal was de minimus and therefore did not run afoul of Stanson. One of the justices on the three judge panel dissented in part, arguing that the supervisor’s email violated Stanson, notwithstanding the minimal level of public funds expended.
IMPLICATIONS – LAW
Although the DiQuisto court found that the County had the right to discuss the unions’ ballot initiative in collective bargaining, its decision reinforces the strict prohibitions on government officials from using public time and money for partisan campaign activities. Public employers should tread carefully when discussing their views on issues pending before the electorate, whether in collective bargaining or in other contexts.
IMPLICATIONS – POLICY
We see a subtle policy relationship between the DiQuisto case and the recent, highly controversial decision of the U.S. Supreme Court in Citizens United v. Federal Election Commission (Case No. 08-205; January 21, 2010). In that case, a majority of the U.S. Supreme Court, over vigorous dissent, took the radical step of holding that federal laws regulating/restricting corporate and union contributions during political campaigns are an unconstitutional infringement on Free Speech. The Court based its rationale on the premise that corporations – and unions – are vital participants in public debate representing the interests of shareholders and members and have as much a right to spend moneys to influence the ballot box as citizens do.
The public employer, headed by elected representatives, is the public’s trustee in the realm of public sector labor relations. It is indeed ironic that under California law, the public employer has so little latitude to inform the public of its views on the same public sector labor relations ballot initiatives on which public sector unions have constitutional protection not just to speak freely, but to spend freely.
In our view, it is time for the California courts to afford to public sector employers latitude to represent and speak to the public in response to such ballot initiatives. Otherwise, public sector unions will be further encouraged to attain through the electoral process what they could not get in negotiations, without an adequate opportunity for the public interest to be expressed or represented.
On January 22, 2010, the Sixth District Court of Appeal issued an important decision affirming that Santa Clara County officials did not violate constitutional limitations against governmental campaign spending when, in collective bargaining, they encouraged employee unions to withdraw their support of a 2004 ballot initiative. If enacted, the initiative would have given private arbitrators the authority to make the final determination on wages, hours, and other working conditions for affected bargaining units.
Factual Summary
In early 2004, three Santa Clara County labor unions agreed to sponsor a local initiative measure for the November 2004 ballot. The initiative would have amended the County’s charter to provide for binding interest arbitration as a means of resolving labor disputes between the County and unions representing nurses, correctional officers, and deputy district attorneys. Interest arbitration is a process in which a private arbitration panel determines the terms and conditions of a new collective bargaining agreement when negotiations between an employer and employee organization reach impasse, a function typically performed by a public agency’s governing body.
On June 23, 2004, the interest arbitration initiative qualified as “Measure C” for the November ballot. Prior to that, the County discussed the initiative in contract negotiations with a number of other employee unions. In negotiations with two of the unions that sponsored Measure C, the County’s proposals included one that would require them to withdraw their support for the initiative. The County further proposed that the unions agree not to initiate or support efforts to place binding interest arbitration on the ballot in the future. Both unions rejected these proposals. Ultimately, the County and the unions entered into MOUs that did not refer to the initiative.
In addition to discussing Measure C in collective bargaining, the County took affirmative steps to oppose the initiative. Acting through its board of supervisors, the County placed two counter-measures on the same ballot. In November 2004, Measure C was defeated at the polls, along with the County’s counter-measures.
The controversy surrounding Measure C boiled over into court. In June 2004, several individuals filed a taxpayer suit against the County and certain County officials. In their complaint, the plaintiffs accused the County of improperly using public funds for partisan electoral purposes in its bargaining with the unions over Measure C. The plaintiffs also challenged an email sent by a member of the County’s board of supervisors to approximately 1,500 individuals, which encouraged recipients to educate themselves about the proposed charter amendments and attached a copy of a newspaper editorial urging a “no” vote on Measure C and a “yes” vote on the County’s counter-measures. After a four-day trial, the superior court issued a statement of decision, ruling in the County’s favor as to all causes of action. The plaintiffs appealed.
The Court of Appeal’s Decision
In a 44-page opinion, the Sixth District Court of Appeal, by majority panel, affirmed the superior court’s decision in its entirety.
Initially, the Court of Appeal held that it was proper for the County to discuss Measure C in collective bargaining under the Meyers-Milias-Brown Act, the state law governing public sector labor relations. The court explained that, under the MMBA, “although binding interest arbitration is not a mandatory subject of contract negotiations, it is a permissive subject about which the parties properly may meet and confer.” The court then noted that in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, the California Supreme Court recognized that “the electoral process and MMBA can coexist” and that this reasoning, by extension, “undercuts plaintiffs’ assertion that collective bargaining and the initiative process are mutually exclusive.”
The Court of Appeal next considered whether the County’s conduct constituted impermissible partisan campaign activity under Stanson v. Mott (1976) 17 Cal.3d 206. The court noted that under Stanson, a public agency may not expend public funds to promote a partisan position in an election campaign, absent express legislative authorization. The court explained that this prohibition stemmed from “the fundamental precept” that “government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.” The court clarified, however, that Stanson does not preclude a government entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure.
The Court of Appeal concluded that the County’s conduct in collective bargaining constituted permissible informational activity, rather than partisan campaign activity prohibited under Stanson. In reaching this conclusion, the court relied on the fact that the County’s conduct in discussing the unions’ non-support of Measure C did not constitute “typical campaigning activity,” because it occurred in the context of collective bargaining, rather than a more public setting. The court also noted that the “style and tenor” of the County’s proposals was “not at all comparable to traditional campaign material” in that the proposals “were framed in the dispassionate language of contract, not in the exhortatory tone of persuasion.” Further, the court pointed out that the County’s conduct preceded the measure’s qualification for placement on the ballot and, moreover, was “intended to sway the unions, not the voters.”
The court reached a similar conclusion with respect to the email sent to the public by a member of the board of supervisors, finding the email to be purely “informational.” The court also held that while the editorial attached to the supervisor’s email constituted express advocacy, the expenditure associated with its transmittal was de minimus and therefore did not run afoul of Stanson. One of the justices on the three judge panel dissented in part, arguing that the supervisor’s email violated Stanson, notwithstanding the minimal level of public funds expended.
IMPLICATIONS – LAW
Although the DiQuisto court found that the County had the right to discuss the unions’ ballot initiative in collective bargaining, its decision reinforces the strict prohibitions on government officials from using public time and money for partisan campaign activities. Public employers should tread carefully when discussing their views on issues pending before the electorate, whether in collective bargaining or in other contexts.
IMPLICATIONS – POLICY
We see a subtle policy relationship between the DiQuisto case and the recent, highly controversial decision of the U.S. Supreme Court in Citizens United v. Federal Election Commission (Case No. 08-205; January 21, 2010). In that case, a majority of the U.S. Supreme Court, over vigorous dissent, took the radical step of holding that federal laws regulating/restricting corporate and union contributions during political campaigns are an unconstitutional infringement on Free Speech. The Court based its rationale on the premise that corporations – and unions – are vital participants in public debate representing the interests of shareholders and members and have as much a right to spend moneys to influence the ballot box as citizens do.
The public employer, headed by elected representatives, is the public’s trustee in the realm of public sector labor relations. It is indeed ironic that under California law, the public employer has so little latitude to inform the public of its views on the same public sector labor relations ballot initiatives on which public sector unions have constitutional protection not just to speak freely, but to spend freely.
In our view, it is time for the California courts to afford to public sector employers latitude to represent and speak to the public in response to such ballot initiatives. Otherwise, public sector unions will be further encouraged to attain through the electoral process what they could not get in negotiations, without an adequate opportunity for the public interest to be expressed or represented.
Thursday, December 17, 2009
Supreme Court to Review Text Message Privacy
City of Ontario v. Quon, --- S.Ct. ---- (08-1332) (Cert granted on 12/14/09)
The Supreme Court has granted review in City of Ontario v. Quon. The case below was Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008).
In Quon, the 9th Circuit found that the City of Ontario Police Department violated a police officer’s reasonable expectation of privacy by reviewing the content of his sexually explicit text messages, even though: (1) the messages had been sent with a Department-issued pager through a service provider under contract with the Department, and (2) the Department’s formal policy informed all SWAT officers that the Department might review their text messages. In reaching this conclusion, the court relied heavily on a supervisor’s statement to the officer that he could use his page for personal text messages if he paid for them.
The Supreme Court just granted review. The petitions for review raised the following issues:
The Supreme Court has granted review in City of Ontario v. Quon. The case below was Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008).
In Quon, the 9th Circuit found that the City of Ontario Police Department violated a police officer’s reasonable expectation of privacy by reviewing the content of his sexually explicit text messages, even though: (1) the messages had been sent with a Department-issued pager through a service provider under contract with the Department, and (2) the Department’s formal policy informed all SWAT officers that the Department might review their text messages. In reaching this conclusion, the court relied heavily on a supervisor’s statement to the officer that he could use his page for personal text messages if he paid for them.
The Supreme Court just granted review. The petitions for review raised the following issues:
- Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.
- Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages transmitted by a SWAT team member on his SWAT pager.
- Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.
Wednesday, September 2, 2009
City Not Liable for Criminal Conduct of Firefighter
M.P. v. City of Sacramento (Court of Appeal, District 3) (Issued 8/31/09)
This case arose out of a notorious incident in Sacramento a few years ago. A Sacramento Fire Department Captain allegedly allowed firefighters to attend the "Porn Star Costume Ball" sponsored by a local radio station at a hotel. The firefighters decided to drive their fire engine to the ball to “pick up” women. As you can imagine from just these facts, there wasn't a happy ending. One of the women the firefighters "picked up" alleged that she was sexually assaulted in the fire engine by the firefighters. She sued the City of Sacramento alleging that the City was liable for the firefighters conduct.
Not surprisingly, the City argued that the firefighters' conduct was not within the "scope of their employment." The appellate court's decision focused on the California Supreme Court’s decision in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (hereafter Mary M.), which held a public entity that employs a police officer can be vicariously liable for a rape committed by the officer against a woman he detained while on duty. That decision was a departure from the ordinary rule that an employee who commits a sex crime while on duty has not acted within the scope of employment and, thus, the employer is not vicariously liable for the harm to the victim because the crime has no causal nexus to the employee’s work. Accordingly, the court held that the alleged sexual assault by firefighters in this case was not conduct within in the scope of their employment and therefore could not support a finding that their employer, the City of Sacramento, was vicariously liable for the harm.
Comments:
This case is a victory for taxpayers. It makes no sense why taxpayers should be on the hook for the criminal conduct of public employees when that conduct has no relation to their job duties. This is not to say that crime victims should have no remedy in such a situation; they absolutely should and do have a remedy against the people who perpetrated the crime. However, unless the conduct was taken within the scope of employment, I think the court was correct in holding that the taxpayers should not be the deep pocket defendant in these cases.
This case arose out of a notorious incident in Sacramento a few years ago. A Sacramento Fire Department Captain allegedly allowed firefighters to attend the "Porn Star Costume Ball" sponsored by a local radio station at a hotel. The firefighters decided to drive their fire engine to the ball to “pick up” women. As you can imagine from just these facts, there wasn't a happy ending. One of the women the firefighters "picked up" alleged that she was sexually assaulted in the fire engine by the firefighters. She sued the City of Sacramento alleging that the City was liable for the firefighters conduct.
Not surprisingly, the City argued that the firefighters' conduct was not within the "scope of their employment." The appellate court's decision focused on the California Supreme Court’s decision in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (hereafter Mary M.), which held a public entity that employs a police officer can be vicariously liable for a rape committed by the officer against a woman he detained while on duty. That decision was a departure from the ordinary rule that an employee who commits a sex crime while on duty has not acted within the scope of employment and, thus, the employer is not vicariously liable for the harm to the victim because the crime has no causal nexus to the employee’s work. Accordingly, the court held that the alleged sexual assault by firefighters in this case was not conduct within in the scope of their employment and therefore could not support a finding that their employer, the City of Sacramento, was vicariously liable for the harm.
Comments:
This case is a victory for taxpayers. It makes no sense why taxpayers should be on the hook for the criminal conduct of public employees when that conduct has no relation to their job duties. This is not to say that crime victims should have no remedy in such a situation; they absolutely should and do have a remedy against the people who perpetrated the crime. However, unless the conduct was taken within the scope of employment, I think the court was correct in holding that the taxpayers should not be the deep pocket defendant in these cases.
Thursday, June 18, 2009
Union’s Use of School Mailboxes for Political Communication
San Leandro Teachers Assn. v. Governing Bd. (California Supreme Court, Case No. S156961) (Issued on 6/18/09)
Shortly before an election, an employee organization that represents school teachers, and which regularly communicates with its members through school mailboxes, sought to distribute literature through these mailboxes that included endorsements of certain school board candidates. The school district administration refused to permit such political communication and the employee organization sought a writ of mandate to have that policy overturned. In order to resolve whether a writ should properly issue in this case, we must construe the meaning of Education Code section 7054, subdivision (a), which prohibits the use of “school district . . . funds, services, supplies or equipment” for urging the support or defeat of political candidates or ballot propositions. The trial court sided with the employee organization but the Court of Appeal reversed, upholding the school district’s policy as within the scope of section 7054. It also determined that the policy did not violate Government Code section 3543.1, subdivision (b), which gives school employee organizations the right to use internal mailboxes subject to “reasonable regulation,” concluding that the school district’s policy was a reasonable regulation. The Court of Appeal also held that the policy did not violate the United States or California Constitutions.
The California Supreme Court concluded that the Court of Appeal was correct and therefore affirmed its judgment denying the employee organization’s request for a writ of mandate.
Shortly before an election, an employee organization that represents school teachers, and which regularly communicates with its members through school mailboxes, sought to distribute literature through these mailboxes that included endorsements of certain school board candidates. The school district administration refused to permit such political communication and the employee organization sought a writ of mandate to have that policy overturned. In order to resolve whether a writ should properly issue in this case, we must construe the meaning of Education Code section 7054, subdivision (a), which prohibits the use of “school district . . . funds, services, supplies or equipment” for urging the support or defeat of political candidates or ballot propositions. The trial court sided with the employee organization but the Court of Appeal reversed, upholding the school district’s policy as within the scope of section 7054. It also determined that the policy did not violate Government Code section 3543.1, subdivision (b), which gives school employee organizations the right to use internal mailboxes subject to “reasonable regulation,” concluding that the school district’s policy was a reasonable regulation. The Court of Appeal also held that the policy did not violate the United States or California Constitutions.
The California Supreme Court concluded that the Court of Appeal was correct and therefore affirmed its judgment denying the employee organization’s request for a writ of mandate.
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