Below is a letter submitted to the Office of the Attorney General
by the Law Offices of Mayer & Coble on behalf of CSSA and CPCA
regarding LABOR CODE SECTION 96

April 4, 2000

Rodney O. Lilyquist
Senior Assistant Attorney General
Chief, Opinion Unit
110 West A Street, Suite 1100
San Diego, California 92186-5266

Re: Opinion No. 00-303

Dear Mr. Lilyquist:

We write on behalf of the California State Sheriffs' Association and the California Police Chiefs' Association in response to your letter dated March 3, 2000. Your letter solicited our views on the following issue:

Does the recent amendment of Labor Code section 96 (Stats. 1999, ch. 692, § 2) overturn existing case law that permits the disciplining of peace officers for off-duty conduct occurring away from their place of employment, which conduct is otherwise lawful but conflicts with their roles as peace officers (e.g., association with known criminals)?

Having extensively researched the issue, we have concluded that Labor Code § 96 does not overturn existing case law permitting peace officers to be disciplined for inappropriate, albeit lawful off-duty conduct.

Labor Code § 96(k) was enacted by the Legislature in 1999. It provides that the Labor Commissioner shall take assignments of "claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises."

While Labor Code § 96(k) appears to apply to law enforcement, it nonetheless conflicts with long-standing case law in California that peace officers may be disciplined for off-duty conduct which is lawful, but which is inimical to their duties as peace officers.

As stated succinctly by the California Supreme Court in Pasadena Police Officers Association v. City of Pasadena, 51 Cal.3d 564 at 568 (1990):

To keep peace and enforce the law, a police department needs the confidence and cooperation of the community it serves. Even if not criminal in nature, acts of a police officer that tend to impair the public's trust in its police department can be harmful to the department's efficiency and morale . . . Nothing can more swiftly destroy the community's confidence in its police force than its perception that concerns raised about an officer's honesty or integrity will go unheeded . . .

The court ultimately stated that ". . . under the FLSA an employer is free to require an employee to take time off work, and an employer is also free to use the money it would have paid in wages to cash out accrued compensatory time. The compelled use of compensatory time challenged in this case merely involves doing both of these steps at once. It would make little sense to interpret § 207(o)(5) to make the combination of the two steps unlawful when each independently is lawful."

In the same case, the Supreme Court stated that, "[c]ourts have long recognized that, while the off-duty conduct of employees is generally of no legal consequence to their employers, the public expects peace officers to be 'above suspicion of the very laws [they are] sworn . . . to enforce.'" Id. at 587, quoting, McCain v. Sheridan, 160 Cal.App.2d 174, 177 (1958).

More than 90 years ago, in Cleu v. Board of Police Commissioners, 3 Cal.App. 174 (1906), the Court of Appeal upheld the dismissal of a police officer for failure to timely pay his debts. Said the Court in that case:

A fireman in the discharge of his duties is mainly confined to work in extinguishing fires, and he touches the public at fewer points than does a police officer in the discharge of his duties. A police officer is intimately connected with the enforcement of all laws and ordinances concerning crimes, and is an important factor in preserving the peace and good order of the community. His efficiency in this regard largely depends upon the respect and confidence in which he and his associates are held by the citizens. A course of conduct, such as neglecting to pay his debts that forfeits such respect tends to interfere with his usefulness as an officer.

In Riveros v. City of Los Angeles, 41 Cal.App.4th 1342 (1996), likewise, the Court of Appeal upheld the termination of a police officer for his off-duty relationship with an arrestee, including meeting her in a motel room, rented by the officer under a fictitious name. The conduct was lawful and occurred off-duty and off-premises.

In Anderson v. State Personnel Board, 194 Cal.App.3d 761 (1987), a California Highway Patrolman was dismissed from his employment for appearing nude in sight of his neighbors. The Court of Appeal concluded that there was insufficient evidence that Anderson's activities violated the law. Id. at 768. However, the Court did conclude that Anderson's behavior constituted a failure of good conduct under Government Code § 19572 which merited termination. "[W]e note that there are professions, like that of law enforcement, which impose upon its servants certain 'responsibilities and limitations on freedom of action which do not exist in other callings.'" Id. at 771, quoting, Ackerman v. State Personnel Bd., 145 Cal.App.3d 395, 400 (1983), citing, Board of Trustees v. Stubblefield, 16 Cal.App.3d 820, 824 (1971).

It being established that there is an apparent conflict between Labor Code § 96(k) and the common law when it comes to peace officers, the issue is whether the recently enacted legislation overrides the pre-existing common law. Established principles of statutory construction dictate that it does not.

Within the last year, the Court of Appeal reaffirmed the long standing rule of statutory construction that statutes not be interpreted to alter the common law unless expressly provided by the Legislature. Borg-Warner Protective Services Corp. v. Superior Court (Syroco, Inc.), 75 Cal.App.4th 1203 (1999). See also, Saala v. McFarland, 63 Cal.2d 124, 130 (1965), quoting, Gray v. Sutherland, 124 Cal.App.2d 280, 290, "'[s]tatutes are not presumed to alter the common law otherwise than the act expressly provide.'"

In enacting Labor Code § 96(k), the Legislature did state:

The Legislature finds and declares that, absent the protections afforded to employees by the Labor Commissioner, an individual employee is ill-equipped and unduly disadvantaged in any effort to assert the civil rights guaranteed by Article I of the California Constitution. The Legislature further finds and declares that allowing any employer to deprive an employee of any constitutionally guaranteed civil liberties, regardless of the rationale offered, is not in the public interest. The Legislature further declares that this act is necessary to further the state interest in protecting the civil rights of individual employees who would not otherwise be able to protect themselves.

Section 1 of Stats. 1999, c. 692 (A.B. 1689), § 2.

However, in enacting Labor Code § 96(k), the Legislature did not specifically address the need to protect the civil rights of peace officers. Instead, the Legislature spoke generally of all employees, including private sector employees who have far less in the way of job protection than public employees. See, e.g., Labor Code § 2922 ("an employment, having no specified term, may be terminated at the will of either party on notice to the other.")

Peace officers, in contrast to private sector employees and even compared to many public sector employees, have long been entitled to substantial job protection. A peace officer, for example, unlike a private sector employee, may only be disciplined upon a showing of just cause. See, e.g., California Correctional Peace Officers Association, 10 Cal.4th 1133, 1153 (1995); Cranston v. City of Richmond, 40 Cal.3d 755, 788, fn. 13 (1985). Moreover, the Legislature has enacted extensive legislation to protect the rights of peace officers. See, Government Code § 3300, et seq. Indeed, for more than 20 years, public entities have been prohibited by statute from interfering with the right of peace officers to engage in political activity off duty. Government Code § 3302.

And, while a peace officer may be disciplined for off-duty conduct which is otherwise lawful, the employer bears the burden of proving the existence of a nexus between the peace officer's duties and the off-duty conduct. Specifically, it must be shown that the misconduct bears some rational relationship to the job and must be of such character that it can easily result in the impairment or disruption of the public service. Ramirez v. State Personnel Board, 204 Cal.App.3d 288, 293 (1988) (termination of officer for public masturbation off-duty upheld).

In light of the foregoing, it is reasonable to conclude that, in enacting Labor Code § 96(k), the Legislature was not addressing itself to the plight of peace officers. There is, in addition even to the cases cited above, a plethora of cases which stand for the proposition that peace officers may be disciplined for otherwise lawful, off-duty conduct. Yet, the Legislature made no mention of those cases in the language of Labor Code § 96(k). If the Legislature was dissatisfied with the results of those cases it could easily have expressed its intention to overturn them. Moreover, the Legislature has already addressed itself to providing substantive and procedural job protection for peace officers. If the Legislature wished to increase those protections it would have made specific mention of peace officers, or, amended the existing statutes; it did neither.

In the absence of an expressed intent by the Legislature to overturn existing case law regarding the discipline of peace officers for off-duty conduct, Labor Code § 96(k) should not be interpreted to have that effect. To interpret Labor Code § 96(k) to have that effect would be inconsistent with established principles of statutory construction.

As always, we appreciate the opportunity to provide input on issues which effect our members. If you have any questions or require any additional information, please do not hesitate to call us at (562) 590 8280.

Sincerely,

MAYER & COBLE

*********

[THE LAW OFFICES OF MAYER & COBLE, located in Long Beach, limits its practice to representing cities, counties and the State as legal advisor to their police and sheriff's departments. Mr. Mayer was, for 10 years, the State Chairman of CPOA's Police Legal Advisors Committee. He currently serves as counsel to the California Police Chief's Association, the California State Sheriff's Association and the California Peace Officers' Association.]