MOU Cost Sharing by Employee For

Hearing Officer Unconstitutional

Florio v. City of Ontario, 2005 Cal. App. LEXIS 1091

April Florio was a police dispatcher who was terminated and appealed her termination. The MOU provided that the cost of the Hearing Officer's services was to be shared equally between the City and the employee. After four days of hearing, the hearing officer found in favor of the City and against Florio. She had to pay $3,290.00 as her share of the cost of the hearing. Florio filed a complaint for damages seeking recovery of the $3,290.00, an injunction against the City enforcing the sharing provision, and a petition for writ of mandate. The trial court granted Florio's petition.

The California Court of Appeal, Fourth Appellate District affirmed, ordered Florio to recover her costs on appeal and held the cost-sharing provision of the MOU unconstitutional. The Appellate Court also found that an unconstitutional provision could not be contractually waived in an MOU.

The Court noted that it previously held unconstitutional the cost-sharing provision of Education Code § 44944, requiring a teacher to pay one-half the cost of an administrative law judge if the teacher lost a hearing regarding a threatened suspension or dismissal. The Court pointed out that the collective bargaining agreements may not contain provisions abrogating employees' fundamental constitutional rights or their rights under a federal statute.

The Court concluded that although parties to a collective bargaining agreement may supplant existing procedures by which employees are disciplined or discharged, and employee's right to due process cannot be waived in a collective bargaining agreement. Here, the Court stated, Florio's due process rights included the right to have a meaningful hearing without having to pay for it.

HOW DOES THIS IMPACT YOUR AGENCY:

Where personnel matters become issues during the collective bargaining process it is incumbent upon all parties to pay close attention to what is purely procedural, and what infringes on the employees' due process rights.