JOHN ROE v. CITY OF SAN DIEGO, et al. 356 F. 3d 1108 (9th Cir. 2004)

John Roe (pseudonym approved by the court), had been a San Diego police officer for more than seven years. Roe videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation. He offered the home-made videos for sale on the adults-only section of the online auction site eBay, using a fictitious name and a Northern California address. Although the videos did not reveal his connection with the San Diego P.D., Roe was unmasked when one of his supervisors discovered the videos online and recognized Roe's picture. The department confronted Roe, who readily admitted making and selling the videos, and eventually terminated him.

Roe sued the department, City, and his supervisors under 42 U.S.C. § 1943, alleging that his off-duty, non-work-related activities were protected by the First Amendment and could not be grounds for terminating his employment. The defendant (City) conceded that Roe's speech was not in any way related to his employment as a police officer, more that his offering to sell a uniform formerly used by the police department somehow linked his videos to the department. The district court dismissed Roe's claim, concluding that the videos did not address a matter of "public concern" and, thus, the department did not violate Roe's constitutional rights by firing him.

The United States Court of Appeals for the Ninth Circuit reversed and remanded, holding that Roe's expressive conduct fell within the protected category of citizen comment on matters of public concern, rather than employee comment on matters related to his personal status in the workplace.

The Ninth Circuit noted that it was not the first court to confront the issue of off-duty, non-work-related speech. The Ninth Circuit pointed out that, in 1995, the U.S. Supreme Court held that government employees "expressive activities" that "were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment" fell "within the protected category of citizen comment on matters of public concern rather than employee comment on matters related to personal status in the workplace." (U.S. v. National Treasury Employees Union, 513 U.S. 454 ).

The Ninth Circuit also noted that, in 1968, the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, recognized that government retaliation against public employees for engaging in protected speech could violate the First Amendment. In the Pickering case, a balancing test was established whereby "the interests of the [employee], as a citizen, in commenting upon matters of public concern," are weighed against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568.

The Ninth Circuit concluded that when an employee's speech is not about his or her government employer or employment; is directed to a segment of the general public; and occurs outside the workplace, such speech satisfies the public concern test, because such speech is not related to the employee's status in the workplace.

The Court concluded it's opinion, stating, "Our holding does not render the Department powerless to act against Roe for his off-duty, non-work-related conduct. Rather, whether Roe's speech is ultimately entitled to protection will depend on the Pickering balancing phase. In that step, the free speech interests in Roe's expressive activity must be weighed against the Department's interest "in promoting the efficiency of the public services it performs through its employee." (Citations omitted) "... the Department can prevail on Roe's First Amendment claim if it proves by a preponderance of the evidence that it would have terminated Roe regardless of his expression."

How this may affect your agency? Undoubtedly, if this holding is left to stand it will make it much more difficult for agencies to regulate, not only peace officer off-duty conduct, but also all employee off-duty conduct. Departments must, in all off-duty situations, specifically indicate a "nexus" between the off-duty conduct and the employee's job classification.

EBBERT v. SUPERIOR COURT (City of San Diego) 115 Cal. App. 4th 1012 (2004)

In early 2003, defense counsel in an unrelated criminal proceeding (the Cruz matter) filed a motion under E.C. § 1043, "Pitchess," to obtain information concerning three peace officers, including Officer Michael T. The motion was granted and a "Disclosure and Protective Order" was entered. An investigator for Cruz interviewed several witnesses connected to complaints lodged against Officer Michael T. and obtained statements from them. Also in early 2003, defense counsel, in an unrelated criminal proceeding (the Ebbert matter), sought information concerning three peace officers, one of which also was Officer Michael T. The court granted Ebbert's Pitchess motion and entered a "Disclosure and Protective Order" that was, as to Officer Michael T., essentially the same as the order entered in the Cruz matter.

In June 2003 Ebbert's attorney learned that some of the witnesses, whose identities had been disclosed to Ebbert in response to his Pitchess motion, had also been disclosed to Cruz. Cruz's investigator had interviewed some of these witnesses and there were reports by the investigator concerning those interviews. Ebbert's attorney moved for an order clarifying whether Ebbert could inspect and use the Cruz reports without violating the Cruz protective order. The trial court ruled the Cruz protective order barred Ebbert from any inspection or use of the Cruz reports, and held Ebbert was required to re-interview the witnesses. Ebbert filed a petition for writ of mandate, seeking review of the trial court order.

The Fourth District Court of Appeal, issued an order to show cause and concluded that when there is a successful Pitchess motion, in a subsequent case, that discloses duplicate information from the personnel file of the same peace officer who was the subject of a prior successful Pitchess motion, the duplicate Pitchess information in the two cases --identities, addresses and telephone numbers of complainants-- may be shared between the litigants in the two cases without violating EC § 1045 (e) protective orders in either case.

The Fourth District, addressed issues raised in Alford v. Superior Court (2003) 29 Cal.4th 1033, and opined that although EC § 1045 (e) placed limits on the use of disclosed information, any evidence developed as the result of the use of the disclosed information was the work product of the successful Pitchess motion, and that § 1045 (e) did not limit use of the developed information to the case in which the Pitchess motion was granted. The Fourth District pointed out that statements obtained by the litigant from the complainant or witness were not materials obtained from the peace officer's personnel records, even though a statement of the witness may also be included in those records.

Rather, the statements obtained by investigation, following a successful Pitchess motion, were part of the information available to anyone should the complainant be willing to discuss the matter. The Fourth District further noted that only the identity of the complainant was secreted in the personnel records, and the substance of interviews that complainant gives to a litigant is not and does not become part of the peace officer's personnel record maintained by the employer.

The Fourth District felt that it's conclusion was consistent with the overall purpose of the Pitchess statutory scheme, which was to preserve to the peace officer as much privacy as possible, considering the competing need of a defendant to gather evidence relevant to his or her defense. By deeming statements gathered, as the result of the disclosed information, outside the ambit of the protective order, the defendant's ability to prepare a defense is enhanced and the officer's privacy interest in the data contained in his personnel file suffered no additional denigration beyond that which inured when the Pitchess disclosure was ordered.

The Fourth District opined that EC § 1045(e)'s protective order, which requires that the records disclosed to a litigant shall not be used for any purpose other than the court proceeding in which disclosure was ordered, must be construed to exclude any statements gathered by the defense derived from witnesses whose names were disclosed by the court order granting the Pitchess motion.

After lengthy analysis the Fourth District concluded that a litigant who has independently satisfied the Pitchess need-to-know requirements, as to specific complainants with respect to a peace officer, is authorized to learn the identity of the complainants in the possession of other successful Pitchess litigants. The Fourth District issued a writ of mandate directing the trial court to vacate is order and enter a new and different order.

How does this affect your agency? This case may open the door for the defense bar to automate information received from successful Pitchess motions regarding an officer, allowing subsequent litigants, who are also successful in their Pitchess motions, to share the data. Agencies that are destroying sustained allegations of misconduct, which would be considered subject to Pitchess disclosure, may find this practice will place them at a disadvantage. Departments should reevaluate and discuss with their legal adviser personnel records destruction practices regarding citizen complaints.

LOS ANGELES CO. PROFESSIONAL PEACE OFFICERS' ASSOC. v. CO. OF LOS ANGLES 115 Cal. App. 4th 866 (2004)

District Attorney Investigators William Kuper and Bennie Layne, after being injured on the job, were off on temporary disability (LC § 4850) and retired when their disabilities became permanent. Under a County ordinance, D.A. investigators could accumulate up to 320 hours in current and deferred vacation time. The Ordinance provided that if an employee's vacation total exceeded 320 hours as of year's end, the balance "shall be reduced" by the excess amount, and the employee paid for the lost vacation hours at the rate of his salary. Vacation time cashed out under this provision was added into the employee salary figure used to calculate retirement benefits. However, the Ordinance provisions limiting the carryover of vacation time did not apply to employees out on temporary leave due to work-related injuries.

When Kupper and Layne retired, each was paid back for all accumulated vacations hours, however, because their vacation time was cashed out after retirement, the money they were paid was not used to determine their pension benefits. A mandate petition was brought against the County alleging there was an entitlement to the vacation pay cash-out while on temporary disability as a matter of right. By failing to make the payment, Kupper and Layne alleged, the County violated its obligation to fully compensate them during the LC § 4850 period, thereby reducing the amount of their pension benefits. The trial court denied the petition.

The California Court of Appeal, Second Appellate District, affirmed the trial court's denial, holding that Kupper and Layne were not entitled to a cash-out of their excess vacation time during the time they were on disability leave, and that the County's failure to credit its buy-back for purposes of determining pension benefits did not violate LC § 4850.

The Court of Appeal pointed out that while LC § 4850 provides that when certain public safety officers, including D.A. investigators, are injured on the job, these employees are entitled to a leave of absence for up to one year "without loss of salary," instead of the scheduled workers' compensation benefits applicable to most other employees, payments made under LC § 4850 are considered workers' compensation benefits, not salary. (City of Martinez v. Workers' Comp. Appeals Be. (2000) 85 Cal. App.4^th 601). The Court also noted that the phrase "without loss of salary" has been construed to mean sick pay and other fringe benefits to which an employee is entitled. (Mannetter v. Co. of Marin (1976) 62 Cal. App.3d 518).

The Court of Appeals looked at the District Attorney's practices and found undisputed evidence that in order to avoid cash buy-outs of excess vacation time, the District Attorney made employees take vacation to bring their accrued vacation time under the 320 hour limit. The Court stated that given the District Attorney's practice in regard to avoiding buy-backs of excess accrued vacation time, Kupper and Layne were not entitled, as a matter of right, to such a buy-back while on disability. Instead, the cash-out of excess vacation time was nothing more than a possibility that only a fraction of the District Attorney's investigators might obtain in any given year.

The Court opined that the County's excess vacation buy-back policy did not grant Kupper and Layne any rights, but instead limited the amount of vacation time that could be accrued. The Court also noted that as it understood the County's policy and practice, no employee ever forfeited accrued vacation time. Instead, the County allowed its workers to accrue up to 320 hours of vacation time, but tried its best to have employees take any vacation hours over that amount. If the employee could not, due to the demands of their work schedules, the employees would be fully compensated at year's end for the loss of any remaining excess vacation. The Court found the County's policy not to be a "use it or lose it" provision and did not cause the forfeiture of any vested vacation time; it was simply an attempt to limit the amount of vacation time that could be accrued, which was allowed by LC § 227.3. (Boothby v. Atlas Mechanical, Inc., (1992) 6 Cal. App.4^th 1595)

The Appellate Court concluded that Kupper and Layne were not compelled to forfeit their excess vacation time, they were just not entitled to force the county to cash it out while on disability. When Kupper and Layne were no longer receiving disability benefits because they had retired, they were paid the accrued vacation time as part of termination pay, which is not included in calculating retirement benefits.

How does this affect your agency? This case reaffirms that end-of-year buy back provisions for vacation time that exceeds established accumulation amounts, do not apply to employees who are on temporary disability leave under LC § 4850. The importance of enforcing vacation accrual provisions, as was the practice of District Attorney's Office, cannot be overly emphasized in as much as the Court specifically took note of how the District Attorney was enforcing the ordinance.

COX v. BOXER, et al. 2004 U.S. App. LEXIS 3015 (9th Cir. 2004)

Claude Cox was the Safety/Loss Manager for Spokane County who oversaw investigation of liability claims. Cox reported to Marshall Farnell, the Director of Administrative Services who, in turn reported to the County Administrator, Francine Boxer.

Boxer received numerous complaints from private citizens and a local business regarding Cox's handling, processing, and payment of particular claims. Box and County Commissioner Roskelley met with Cox, who assured them that he had the matter under control. After receiving communications from the general public voicing the same concerns expressed by Boxer, the Board of County Commissions requested that the Washington State Auditor's Office review the disputed claims. After the Auditor's office briefed Farnell and Boxer, Farnell and Boxer notified Cox that he was being placed on administrative leave with pay pending further review of issues related to the claims, and Cathy Malzhan of the County's Human Resources Department, conducted the claims review.

After receiving Malzhan's report, Boxer and Farnell wrote Cox a letter entitled "Notice of Potential Disciplinary Action." Approximately one month later Cox was sent another letter entitled "Supplementary Information Regarding Notice of Potential Disciplinary Action." Cox's attorney responded on the same day, denying any appearance of impropriety. Cox also challenged all alleged wrongdoing reflected in the earlier letter. After reviewing the responses from Cox's attorney, Boxer and Farnell discharged Cox from employment. The termination letter articulated two overall reasons for terminating Cox's employment, and a copy of the termination letter was placed into, and made a part of, Cox's personnel file.

Cox was never afforded a pre-termination or post-termination hearing by the County. Subsequent to Cox's termination, a local newspaper filed a public records request for the release of Cox's termination letter. A member of the Spokane County Prosecuting Attorney's Office informed County officials that the Washington Code mandated release of the letter from Cox's personnel file.

Cox and his wife Linda filed a complaint against Spokane County, the three County Commissioners, Boxer and Farnell, asserting causes of action under 42 U.S.C. § 1983 for deprivation of property interest, wrongful discharge and deprivation of liberty interest in Cox's good name. Defendants filed a motion for summary judgment, which the district court granted as to the property interest claims, but denied the liberty interest claim. Defendants then filed a motion for reconsideration asserting, among other arguments, that release of the termination letter did not constitute public dissemination. Upon reconsideration, the district court granted the motion in favor of the individually named county commissioners, but denied the motion as to Boxer, Farnell and Spokane County. The remaining defendants then filed a second summary judgment motion, asserting a qualified immunity defense, which the court denied.

The United States Court of Appeals for the Ninth Circuit affirmed holding that the law was clearly established that publication of stigmatizing information without a name clearing hearing violated due process.

The Court pointed out that in Board of Regents v. Roth, 408 U.S. 564 (1972), the United States Supreme Court established that a terminated employee has a constitutionally based liberty interest in clearing his or her good name, when stigmatizing information regarding the reasons for the termination is publicly disclosed. Failure to provide a "name clearing" hearing in such a circumstance is a violation of the Fourteenth Amendment's due process clause.

The Court noted that publication of the stigmatizing information occurred, if at all, when the termination letter was placed into and maintained in Cox's personnel file. The parties agreed that once the stigmatizing information was placed into Cox's personnel file, it became a public record under Washington law, mandating disclosure upon request. The Court pointed out that a prior case, Llamas v. Butte Community College District, 228 F.3d 1123 (9^th Cir.2002), which considered this issue but was inapplicable to the facts here, held that California statues did not mandate disclosure of documents in an employee's personnel file.

The Court stated "we now hold explicitly that placement of the stigmatizing information in Cox's personnel file, in the face of a state statute mandating release upon request, constituted publication sufficient to trigger Cox's liberty interest under the Fourteenth Amendment. The lack of an opportunity for a name clearing hearing violated his due process rights." The Court concluded that, "we further hold that the contours of the right to a name clearing hearing upon placement of stigmatizing material in the personnel file were clearly established, such that a reasonable official in these defendants' position would have known that his conduct was unlawful."

How does this affect your agency? Although California has both "Skelly" and "Lubey" safeguards in place, there may still exist those occasions when an agency will place a personnel evaluation or other document, containing negative information, into the personnel file of an employee who has been terminated, without providing the opportunity to challenge the information contained in the document. The mere fact that California does not have a statute mandating the release of documents from personnel files, does not make the placement of stigmatizing information into a personnel file lawful.

SMITH v. CITY OF HEMET, et al. 356 F. 3d 1138 (9th Cir. 2004)

Mrs. Thomas Smith called the Hemet Police Department reporting domestic violence. Officer Reinbolt, the first officer to arrive, observed Smith standing on his front porch and instructed Smith to remove his hands from his pockets. Smith refused and responded with expletives. Smith, who was again informed he had to remove his hands from his pockets before the officer would approach, turned and entered his home. Smith reemerged onto the porch with hands still in his pockets. He eventually complied with Officer Reinbolt's request to show his hands, but refused to comply with instructions to put his hands on his head and walk toward Officer Reinbolt.

Officer Nate Miller arrived and observed Smith's refusal to cooperate with Officer Reinbolt, and requested additional assistance. Officer David Quinn, a canine handler, arrived with "Quando," the police canine, as did Officer Aaron Medina. Officer Quinn instructed Smith to turn around and place his hands on his head; Smith refused, despite being informed that Quando might be sent to subdue him and might bite.

Without warning, Officer Quinn sprayed Smith in the face with pepper spray, and Smith responded with expletives and attempted to reenter his residence. Several officers then grabbed Smith from behind, slammed him against the door, and threw him to the ground. Quando then bit Smith on his right shoulder and neck area. As an officer attempted to secure both of Smith's arms, Quando bit Smith a second time, this time on his left shoulder blade and retreated. The officers dragged Smith off the porch face down, and Quando bit Smith a third time, on the buttock. Paramedics arrived and attended to Smith, who required no serious medical treatment. Smith was charged with spousal battery and resisting, delaying and obstructing an officer in the performance of his duties in violation of PC § 148, and pled guilty to both counts.

Smith filed a action under 42 U.S.C. § 1983 alleging that the officers used excessive force, and the district court granted the officer's and city's motion for summary judgment. The United States Court of Appeals for the Ninth Circuit affirmed the district court's summary judgment finding, holding that Smith's action was barred by the United States Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994).

The Ninth Circuit pointed out that it was bound by the California Supreme Court's interpretation of California statutes. Should no Supreme Court authority exist, and "in the absence of convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow decisions of the state's intermediate courts." (Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9^th Cir.1996). Noting that "Section 148 has long been construed by the courts as applying only to lawful arrests ...," the Ninth Circuit stated that California law left it no choice but to regard a § 148 conviction as incompatible with an allegation that the arrest was unlawful.

The Court opined that for Smith to proceed on his excessive force claim, he must allege facts that would support a finding that the police used excessive force after his arrest. However, as the district court noted, "even under Plaintiff's version of the events, the Defendants sprayed him in the face with pepper spray and had the dog bite him while arresting him." The Ninth Circuit concluded that it found that Smith's § 148 conviction bars him proceeding with his § 1983 claim.

How does this affect your agency? Although it is understood that individuals should be arrested for violation of PC § 148 only where probable cause to believe a violation has in fact been committed, agencies should insist on filings with no plea bargains - other than a guilty plea or stipulation to probable cause for the § 148 charge. To do otherwise is to subject the officers and agency to possible "excessive force" civil rights violations in federal court. Departments should fully understand and educate it's officers on the District Attorney's filing criteria for § 148 to minimize their liability exposure.