No Requirement To Meet and Confer

Prior To Hiring Retired Officers

As Temporary Employees

SACRAMENTO POA v. CITY OF SACRAMENTO 117 Cal. App. 4th, 1289

The Sacramento Police Officers Association (SPOA) brought a writ of mandate to direct the City of Sacramento and Sacramento Police Department to "meet and confer" regarding the implementation of a policy to hire retirees as temporary non-career employees to remedy a short-term staffing shortage, and the superior court issued the writ.

The California Court of Appeal, Third Appellate District (Sac) reversed the trial court with direction to enter a new judgment denying SPOA's petition in its entirety. The Court concluded that the proposal to hire annuitants in response to an abrupt shortage in the staffing of the police force, which could not be remedied through the ordinary processes of recruitment and hiring, was a fundamental managerial policy decision designed to maintain the existing level of public safety in the community. "It thus was not itself subject to the City's duty to meet and confer even if it represented a change in the status quo with respect to the terms and conditions of employment."

The Court agreed with the City's argument, that the SPOA and trial court intruded into one of the most fundamental management prerogatives in the public sector, the manner of responding expeditiously to a labor market shortage affecting the public safety. The Appellate Court concluded that the City's decision to use retirees to respond to the short-term staffing shortage, in a work force concerned with public protection, involved a question of fundamental managerial policy that neither the SPOA, nor the trial court, was entitled to second-guess.

How does this affects your agency? The Court recognized that there is no fundamental obligation for management to "meet and confer," and/or engage in "binding arbitration," in every decision that might temporarily change terms and conditions of employment. Where, as in this case, exigent circumstances arise regarding pre-determined staffing levels in public safety agencies, there exists a fundamental managerial obligation to decide on how those positions will be temporarily filled, which unions and trial courts are not entitled to second-guess. This case should be discussed with the department's legal advisor in anticipation of increasing shortages in personnel due to the more lucrative retirement plans given to public safety personnel.

VENEGAS, et al. v. CO. OF LOS ANGELES, et al. 32 Cal. 4th 820

The California Supreme Court addressed the issue of whether a sheriff acts on behalf of the state or county when conducting a criminal investigation, including detaining suspects and searching their home and vehicle. Based on analysis of prior California cases, the Court concluded that sheriffs act as agents of the state when carrying out their law enforcement roles. California sheriffs are absolutely immune from prosecution for asserted violations of the federal Civil Rights Act (42 U.S.C. §1983).

Deputies, would not be shielded by the Sheriff's own state agent immunity, and may be held liable for damages under 1983 for violating someone's constitutional rights. However, the rule of qualified immunity shields a public officer from an action for damages under section 1983, unless the officer has violated a "clearly established" constitutional right.

"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz (2001) 533 U.S. 194. Saucier, the Court stated "confirmed that, despite a possible Fourth Amendment violation, officers still must be granted immunity 'for reasonable mistakes as to the legality of their actions.'"

How does this affect your agency? This case only clarifies the question of a sheriff's status when engaged in criminal investigations. The US Supreme Court has held that cities, counties, and local officers sued in their official capacity are themselves "persons" for purposes of section 1983 and, although they cannot be held vicariously liable under section 1983 for their subordinate officers' unlawful acts, they may be held directly liable for constitutional violations carried out under their own regulations, policies, customs, or usages by persons having "final policymaking authority" over the actions at issue. On the other hand, states and state officers sued in their official capacity are not considered persons under section 1983 and are immune from liability under the statute by virtue of the Eleventh Amendment and the doctrine of sovereign immunity.

ALVAREZ v. SUPERIOR CT. OF L.A. CO. (LASO) 117 Cal. App. 4th 1107

Based on an altercation in County Jail with LASO Deputy Michael Do, Marcos Alvarez was charged with one count of resisting an executive officer under PC 69. Alvarez filed a Pitchess motion seeking complaints filed against Do, as well as three other deputy sheriffs, including Daniel Etter, who were participants in, and witnesses to, the altercation. The trial court granted the motion to the extent it sought to discover complaints of excessive force. Following an in camera review of the pertinent records, the court ordered disclosure of one item, the fact that Deputy Joseph Summer filed a complaint against Deputy Etter alleging "workplace violence."

The LASO provided Alvarez with the information required by the discover order and Alvarez's investigator located Deputy Summer, who refused to discuss the event that had formed the basis of his complaint against Deputy Etter. Alvarez then filed a supplemental Pitchess motion seeking the statements taken from Deputy Summer in regard to his complaint against Deputy Etter, which was supported by a declaration from the investigator that averred Deputy Summer had refused to speak with him about the complaint he had filed against Deputy Etter. The motion was denied by the court.

The California Court of Appeal, Second Appellate District, issued a writ compelling the trial court to provide the requested discovery. The Court stated that the practice of disclosing only the name of the complainant and contact information must yield to the requirement of providing sufficient information to prepare for a fair trial. Disclosure of prior statements given by unavailable complainants to the sheriff's investigators was "necessary for effective cross-examination."

The Appellate Court pointed out that the trial court found good cause when it initially granted Alvarez's Pitchess motion and ordered disclosure of the complaint filed by Deputy Summer. However, Alvarez's ability to investigate that information, to determine if it would lead to the discovery of admissible evidence, had been stymied by Deputy Summer's refusal to cooperate, and to deny him access to the information would constitute an abuse of discretion.

The Court rejected the argument that Alvarez had the ability to compel Deputy Summer to appear in court via subpoena. The Court also found without merit the argument adopted by the trial court, that the deputy's refusal to cooperate did not constitute unavailability so as to constitute good cause for further discovery. The Court stated that the salient point was that Deputy Summer's refusal to speak rendered it impossible for Alvarez to pursue his investigation just as if the deputy were unavailable or lacked memory.

How does this affect your agency? Where there is a lack of cooperation to discuss a complaint against an officer, the complainant renders him/herself unavailable for purposes of a "Pitchess" motion. Disclosure of the prior statements given by the unavailable complainants to the sheriff's investigators was "necessary for effective cross-examination."

HAGGERTY v. SUPERIOR CT. OF SAN DIEGO CO. (Luis Guindazola, Real Party) 117 Cal. App. 4th 1079

Luis Guindazola brought a civil action against Deputy William Haggerty, alleging that Haggerty used excessive physical force against him while Guindazola was incarcerated in county jail. After two Pitchess discovery requests and two in camera hearings, the superior court ordered the Sheriff's Department to disclose its report concerning its investigation of the incident underlying Guindazola's civil complaint. Deputy Haggerty challenged the trial court's order.

The California Court of Appeal, Fourth District, affirmed the order but remanded the case, concluding the court erred in ordering the internal affairs report produced without first redacting the portions of the report reflecting the investigating officer's analysis and conclusions. The Appellate Court rejected Deputy Haggerty's contentions that the court abused its discretion in ordering the remainder of the report disclosed.

The Appellate Court noted that the trial court found the report contained facts that were directly relevant to Guindazola's claims and included information that "could lead to the discovery of admissible evidence." In ordering the release, the trial court further stated that "in balancing [Haggerty's] privacy interest in his personnel file against the need for disclosure, the scale tips in favor of disclosure under these circumstances."

The Appellate Court pointed out that once a court conducts an in camera hearing, section 1045 governs the documents that may be disclosed. Section 1045 provides "nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer ... participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation." The Court further noted that relevant information under section 1045 is not limited to facts that may be admissible at trial, but may include facts that could lead to the discovery of admissible evidence.

How does this affect your agency? The Fourth District noted that it's conclusion would have been statutorily mandated if this were a criminal case because section 1045 (b)(2) expressly provides that a court "shall" exclude from disclosure "in any criminal proceeding the conclusions of any officer investigating a complaint ...." In a civil action, "..., a court must still undertake the threshold relevance analysis set forth in section 1045 (a)." Agencies should review how IA reports are written and consider adopting a style which does not commingle investigator analysis, opinions and conclusions with basic facts. In this way opinions, can be easily separated from facts.