MORTENSEN v. CO. OF SACRAMENTO (Sheriff) 368 F. 3d 1082

Sacramento Sheriff's Deputy Ronald Mortensen appealed the district court's grant of summary judgment in favor of the County of Sacramento regarding the denial of his request to take compensatory time off (CTO) on the specific days he requested.

The United States Court of Appeals, Ninth Circuit affirmed summary judgment for the county and rejected Mortensen's argument that it must defer to the Department of Labor (DOL) regulations and opinion letter construing the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(o), and hold that deputies were entitled to use CTO on a specifically requested date. The Ninth Circuit upheld the county's leave policy and MOU which allows the county to grant CTO use within a reasonable time - up to one year - after a deputy makes a request, and may deny a request for a specific date if all leave openings are full.

The Ninth Circuit stated that the FLSA statutory language was clear and joined the Fifth Circuit's holding that the text of § 207(o) unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to grant the request. (Houston POU v. City of Houston, 330 F.3d 298 (5^th Cir.2003), cert. denied, 124 S. Ct. 300 (2003). The Ninth Circuit also held that the county's implementation of its leave policy, which may result in denying a specific request when there were no available leave openings, and the parties' Agreement regarding CTO use, were consistent with § 207(o)(5).

How does this affect your agency? This case settles, in this circuit, that once the request to use accumulated overtime has been made, the agency may or may not grant the use for a specific date or dates, consistent with existing MOU provisions. The Court also clarified that DOL opinions are just that, opinions to which courts may or may not defer. As with all employment matters where there may be an interpretation required to clarify perceived differences in statutory language and MOU terms, legal counsel should be consulted prior to taking action.

BAKERSFIELD CITY SCHOOL DISTRICT v. SUPERIOR CT OF KERN CO. (The Bakersfield California) 118 Cal. App. 4^th 1041; 13 Cal. Rpt. 3d 517

The Bakersfield Californian (Newspaper) filed a petition for a writ of mandate for access to disciplinary records of Vincent Brothers, a school district employee. The trial court reviewed Brother's personnel records in camera and denied disclosure of some records, after concluding that those records were not substantial in nature, and there was no reasonable cause to believe the complaints were well founded. However, as to complaints the court described as "sexual type conduct, threats of violence and violence," the court ordered that the documents must be produced, after being redacted to exclude names, addresses and telephone number of all persons mentioned, except for Brothers. The Bakersfield City School District challenged the superior court's order. The California Court of Appeal, Fifth District, affirmed the trial court's order, holding that neither the imposition of discipline, nor a finding that the charge was true, was a prerequisite to disclosure of a complaint against a public employee.

The Appellate Court noted that the "personnel exemption" provided in Government Code § 6254(c), was "' developed to protect intimate details of personal and family life, not business judgments and relationship.'" Braun v. City of Taft (1988) 154 Cal.App.3d 332.

The courts, both originally and upon review, are required to examine the documents presented to determine whether they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint is well-founded. The courts must consider such indicia of reliability, in performing their ultimate task of balancing the competing concerns of a public employee's right to privacy and the public interest served by disclosure. The Appellate Court also noted that under Evidence Code § 1040, "the fact that the charges against the officers were not substantiated [is a] factor [] which the court may weigh in deciding whether the public interest favors disclosure ..."

How does this affect your agency? This case reaffirms that the burden of proof is on the proponent of non-disclosure, who must demonstrate a "clear overbalance" on the side of confidentiality. It is also important to note that this case does not apply to peace officers, whose personnel files are protected under P.C. § 832.7. Prior to release of any complaints, regarding any public employee, legal advice should be sought.

CITY OF SAN DIEGO v. KEVIN B. 118 Cal. App. 4^th 933; 13 Cal. Rpt. 3d 450

San Diego police officers responded to a 911 call at Kevin B's home, placed by his father. Kevin B's conduct, as described by his mother and father, lead officers to believe that Kevin B., who left the residence prior to the officer's arrival, was subject to detention under WIC 5150. The officers seized weapons from Kevin B's home and from a vehicle he owned, however they were not able to locate him and Kevin B. was never detained or evaluated.

The city filed a petition under WIC 8102 (c), alleging that returning the seized weapons would endanger Kevin B. or others, and asked for an order permitting destruction. The trial court conducted a hearing at which one of the officers who seized the weapons, and Kevin B., testified. The trial court granted the petition and ordered the weapons and ammunition destroyed.

The California Court of Appeal, Fourth District, reversed, holding that because Kevin B. was never assessed or evaluated, the city had no power to bring a petition under WIC 8102(c), and that the trial court erred in granting the city's petition. The Fourth District pointed out that the confiscation and destruction of firearms owned by persons who have been detained under WIC 5150 was authorized and governed by WIC 8102. The power to seek forfeiture of firearms or other deadly weapons was predicated on the performance of the assessment and evaluation required by WIC 5151 and 5152.

The Fourth District noted that is was not possible to read these provisions as permitting the forfeiture of firearms or weapons where a person has not received an assessment and evaluation of his or her mental condition.

The court concluded by pointing out that, "[f]orfeitures are not favored in the law; strict compliance with the letter of the law by those seeking forfeiture must be required." (Nasir v. Sacrmaneto Co. Off. of the Dist. Atty. (1992) 11 Cal.app.4th 976). Lastly, the court pointed out that Rupf v. Yan (2000), 85 Cal. App.4th 411, noted the assessment and evaluation required by WIC 5151 and WIC 5152 are important limitations on the power to confiscate and withhold weapons.

How does this affect your agency? The court was adamant that "if police do not believe a person is dangerous enough to warrant apprehension, assessment and evaluation, the statute does not permit them to permanently deprive the person of his property." As such, any firearms or other weapons, not considered contraband, that are taken from a suspected WIC 5150 individual, and/or from his/her residence, for safe keeping, must be returned if the person is not taken for assessment and evaluation, as statutorily required.