CASE UPDATES

EMPLOYMENT

Under Limited Circumstances Officer
May Waive Bill Of Rights Act Protections

COUNTY OF RIVERSIDE v. SUPERIOR COURT (Madrigal) (2002)105 Cal. Rptr. 2d 387

The City of Perris employed Xavier Madrigal as a police officer until April 1996, when it disbanded its police department, discharged all its officers, without any promises or assurances of permanent employment with the County, and contracted with Riverside County for law enforcement services.

The County Sheriff's Department took over responsibility for law enforcement within the City's boundaries and in order to staff its new unit hired, on a probationary basis, most of the former officers of the City's police department as deputy sheriffs. The former officers were subject to background investigations applicable to other new applicants.

Madrigal received a document entitled "Advisement to Peace Officers Seeking Lateral Placement" stating "You will undergo a rigorous, in-depth background investigation as a result of your application for this position." Madrigal signed the certification at the bottom of this document, stating, "I have read this advisement, understand its implications, and have received a copy of it."

A second document, also signed by Madrigal, stated: "I understand that this background investigation ... is to assess qualifications for this specific employment ... . I understand that I will be given NO FEEDBACK or results other than being notified of ‘Passing' or ‘Not Passing.'" A third document entitled "RELEASE AND WAIVER" expired after one year and authorized representatives of the Sheriff's Department to obtain confidential information, including employment, financial, educational, and medical records. In signing this document, Madrigal affirmed: "I further understand that I waive any right or opportunity to read or review any background investigation report prepared by the Riverside County Sheriff's Department." (Italics added.)

Sometime prior to contracting with the County, the City received a citizen complaint alleging Madrigal engaged in significant illegal conduct while on duty, and apparently never informed him of the complaint. Shortly after hiring, Madrigal was asked to submit to a polygraph examination regarding his alleged misconduct during his tenure as an officer for the City and Madrigal claimed this was his first knowledge of the allegations against him. He voluntarily submitted to the examination and learned that the allegations against him concerned sexual relations with a prostitute, extortion of a pornographic video tape, and the use of illegal drugs.

The County dismissed Madrigal in November 1996, while he was still on probation, and did not give him any reason for the dismissal. Madrigal proceeded to seek employment with several other law enforcement agencies, without success. Suspecting agencies had obtained unfavorable information about him from the County, he brought suit seeking, among other things, disclosure of the County's background investigation file.

Madrigal subpoenaed copies of the documents in the County's background investigation file, including the polygraph examination report. The County provided some records, but objected to the portion of the subpoena that sought the County's and the City's background investigation files. The trial court ordered the County to produce the disputed records for a confidential in camera inspection and the court then ordered the County to provide Madrigal with redacted copies of two documents: (1) the report of the expert who conducted and evaluated the polygraph examination and (2) the memorandum of the investigator who conducted the County's background investigation, summarizing the investigator's findings. The Court of Appeal upheld the trial court, declining to issue a writ of mandate.

The California Supreme Court, in a 4 - 3 decision, concluded that the law gave Madrigal the right to view the documents, but that his waiver of that right was enforceable and reversed the judgment of the Court of Appeal. The Court pointed out that the dispute in this case turned largely on unusual facts: the closing of a city's police department and the transfer to the county of law enforcement responsibility within the geographic boundaries of the city, and pitted two statutory schemes – reflecting two somewhat divergent public policy considerations – against one another (GC §§ 1031 and 1031.1).

The Court noted that rather than requiring Madrigal to remain unemployed while it completed its preemployment background investigation, the County permitted Madrigal to begin work provisionally. The question then became whether its background investigation file constituted a "personnel file" for purposes of the Bill of Rights Act, thereby giving Madrigal the right to view and respond to adverse comments in that file. The Court rejected the County's assertion that a law enforcement agency's background investigation of a peace officer during probationary employment is somehow not a personnel matter subject to the Bill of Rights Act. The label placed on the investigation file is irrelevant. The materials in the file unquestionably "may serve as a basis for affecting the status of the employee's employment," indeed, that is the very purpose of the background investigation, according to the Court.

The Court opined that in the case of the background investigation file at issue here, the Legislature weighed the public interest by guaranteeing peace officers the right, irrespective of the various privileges that might apply, to view adverse comments in their personnel records. The Court concluded that by proceeding as it did, the County subjected its background investigation of Madrigal to the disclosure requirements of the Bill of Rights Act.

Addressing Madrigal's waiver the court noted that Civil Code § 3513 provides: "Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." Therefore, the Court stated, "we think the Bill of Rights Act is, like many other statutory schemes enacted by the protection of a class of employees, not subject to blanket waiver."

The question, according to the Court, then arises whether a law enforcement employer can require an applicant to waive his or her rights under the Bill of Rights Act with respect to a background investigation. In other words, can a law enforcement agency collapse together its hiring process by conducting its background investigation after hiring the employee and then scrupulously segregating its background investigation files from other personnel files? The Court stated that it did not believe the law permitted a law enforcement agency to proceed in this dual fashion.

The Court, however, agreed to a limited extent with the County, that an employee may waive the protections of the Bill of Rights Act. Where the employee's waiver is limited to an investigation of matters that arose prior to employment, and where the waiver expires after one year (so the employee is not subject to continuing investigation long after being hired), enforcement of the waiver would not particularly undermine the public purpose of the Act. Rather, in such a case, enforcement of the waiver would serve the purpose by facilitating an earlier hiring date for new peace officers who are transferring from other agencies.

The Court also noted that if the minimum standards are to have any real meaning a candidate has to meet the standards prior to becoming a peace officer. In other words, a law enforcement agency cannot first grant peace officer status to a civilian, including full peace officer powers, and then conduct its background investigation. Therefore, the Court stated, "we think a waiver of this kind should only be sought in the case of an officer, like Madrigal, who is already a peace officer at the time of the waiver and is merely applying to transfer from one agency to another, or perhaps (though we do not decide the issue here) in the case of an officer who is applying for a different position within the same agency."

The Court stated that a limited waiver of the Bill of Rights Act by an existing peace officer is enforceable, however "the waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences." Concluding, the Court stated that Madrigal knew or should have known of the consequences of his waiver. Madrigal was an existing peace officer. He agreed to let the County obtain background investigations done of him by his former law enforcement employers. Under these circumstances, he had full knowledge that any background investigation the County performed would become available to future law enforcement employers to which he might apply. By waiving his right to view the County's background investigation file, he knew or should have known that he might find himself in his current situation. Accordingly, the waiver is enforceable in this case.

How this affects your agency: Agencies are not encouraged to engage in having lateral applicants sign what is now being called "Madrigal Waivers" without consulting their department legal advisor. This is a narrow, fact specific, case with unusual circumstances and does not negate the rights extended in GC § 3306.5, nor does it allow agencies to enforce waivers that may be considered "contracts of adhesion" or those that are signed without "sufficient awareness of the relevant circumstances and likely consequences." This case involved an individual who was a peace officer in an agency that was disbanded and absorbed by a County Sheriff's Department. The officer was hired as a provisional deputy pending the completion of his background investigation - he was not a lateral, nor a first time applicant.

*********

Regulation Prohibiting Association With
Known Felon Upheld

STRAHAN v. KIRKLAND (2002) 287 F.3d 821

John Strahan, a sergeant with the Washoe County, Nevada Sheriff's Department, was the subject of an anonymous letter sent to local newspapers complaining about a number of incidents in which Strahan's inappropriate conduct was covered up by the department, including hanging out with "seedy guys" namely "Hell's Angels" and one that had an illegal motorcycle repair shop at his residence. Lt. Gist of the Office of Personnel Integrity prepared a memorandum detailing information he had gathered about Strahan and forwarded it to Sheriff Kirkland. The memorandum described other sergeants' statements that Strahan had introduced them to John Vallerio, a biker and convicted felon. Gist expressed concern that Blind Justice Motorcycle Club, of which Strahan was a founder, leader and member, had joined the Confederation of Clubs of Nevada, which was led by a convicted felon. The group's web-site had a link to "prison Pen Pals" and featured pictures of members, including an undercover narcotics officer who eventually lost his undercover assignment because of the club's posting of the photograph. Department General Orders prohibited members of the department from knowingly associating with convicted felons, except when performing official duties. Strahan was told not to associate with Vallerio, but continued to do so.

Sheriff Kirkland, concerned that Lt. Gist was focusing on Strahan's involvement with Blind Justice, removed him from the investigation and assigned Michael Haley, who focused on whether or not people Strahan associated with, whether they were priests or persons who rode motorcycles, were ex-felons, and had Strahan asked permission or informed the sheriff's office of his association and received an OK to continue that relationship.

Strahan received a Notice of Disciplinary Action listing a variety of acts of misconduct and formal violations of the General Orders. For nearly four years, Strahan had operated his motorcycle without a license and in violation of his learner's permit; he filed false articles of incorporation for Blind Justice; and he associated with Vallerio and two other ex-felons through Blind Justice.

Sheriff Kirkland demoted Strahan to deputy sheriff and reassigned him due to the formal violations and "a pattern of conduct that suggests many deficiencies on your part," including defiance, arrogance, rebelliousness, insubordination, contempt for authority, lack of accountability, refusal to accept personal responsibility, a desire to blame others, inability to remember detail (a necessary skill for testifying in court as a police officer), and a professed ignorance of the law that Strahan was charged with enforcing.

Strahan, who eventually resigned from the department, filed a complaint in federal court a week after he was disciplined alleging that Sheriff Kirkland violated his First Amendment rights by investigating, disciplining and demoting him in retaliation for his "association with others relating to the ownership and riding of motorcycles [which] was protected associational activity under the First Amendment." The district court granted Sheriff Kirkland's motion for summary judgment.
The United States Court of Appeals, Ninth Circuit affirmed the district courts grant of summary jugement.

The Court pointed out that a plaintiff alleging an adverse employment action, in violation of his First Amendment rights, must show that his protected conduct was a "substantial" or "motivating" factor for the employer's action. The burden then shifts to the employer to demonstrate that it would have acted the same way even in the absence of the protected conduct. The Court also pointed out that the district court noted "isolated" instances of "inappropriate" questioning during the investigation leading up to the formal discipline, but concluded that the interviews focused primarily on Strahan's association with convicted felons.

The Court noted that although Strahan did produce evidence that Sheriff Kirkland knew of his association with Blind Justice, that alone was not enough to defeat a motion for summary judgment. Sheriff Kirkland knew of his association long before he disciplined him, and did not express opposition to his association with Blind Justice. Sheriff Kirkland was careful to distinguish that association from Strahan's violations of department General Orders.

How this affects your agency: This case reaffirms the validity of reasonable regulations which control officers' conduct on and off-duty and the administration of those regulations where the final decision maker makes a wholly independent, legitimate decision to discipline an employee, uninfluenced by retaliatory motives. Chiefs and Sheriffs should always be sensitive to employees' rights and, as Sheriff Kirkland did in this instance, remove any possible taint by replacing an investigator who may be inappropriately focusing on a protected right.

*********

CRIMINAL LAW/PROCEDURE

Arrest And Search Invalid Where
Ordinance Pre-Empted By Existing State Statute

PEOPLE v. McNEIL( 2002) 96 Cal. App. 4th 1302

Charnaye McNeil was arrested for violating an Oakland ordinance that prohibits standing in a roadway in a manner that interferes with traffic. In a search, incident to her arrest, police found a significant quantity of cocaine in her possession. The trial court granted McNeil's motion to set aside the information, ruling that the Oakland ordinance used as the basis to arrest and search her was preempted by state law and void under settled precedents. The People contend that the arresting officers proceeded in good faith based on a local ordinance they reasonably believed to be valid and enforceable.

The California Court of Appeal, First Appellate District, Division three affirmed the trial court's setting aside the information.

The Court pointed out that the California Vehicle Code was first held to be preemptive of local ordinances regulating pedestrians in Pipoly v. Benson (1942) 20 Cal.2d 366. The Court noted that Vehicle Code § 21 declares that no local authority "shall enact or enforce any ordinance" on matters covered by that code, without specific statutory authorization. Relevant case law does not turn on the particular wording of the local ordinances, holding that the statewide Vehicle Code preempts and supercedes all local ordinances purporting to regulate the same subject matter.

Addressing the Attorney General's argument that the officers could not reasonably be expected to know that tort cases arising in distant counties had undermined the ordinance's legal foundation, the Court, citing United States v. Leon, 468 U.S. 897, 920, fn. 20, stated that there is a requirement officers have reasonable knowledge of what the law prohibits. More, the test in Fourth Amendment cases is not the good faith of the individual officer in the field, but the good faith of the law enforcement agency of which he or she is a part.

The Court concluded that the trial court was correct in concluding that 40 years was enough time for responsible officials of the Oakland Police Department to learn and to educate their officers in the field that the ordinance in question was preempted by state law. That conclusion, according to the Court, did not depend on any fine legal parsing or guesswork, but on the plain language of the state Vehicle Code, a body of law with which police officers are expected to be thoroughly conversant. Although the Court did not question the arresting officers' subjective good faith in relying on the Oakland Municipal Code section, it did not find that reliance objectively reasonable under United States Supreme Court holdings.

How this affects your agency: The not so subtle scolding by this court makes it incumbent upon agencies to consult with the City Attorney or County Counsel and go through their Municipal Codes to ascertain those which fall into the preempted category, and ensure these ordinances are removed from the code.

*********

Entering Neighbor's Yard Without Permission
To Observe Marijuana Plants Does Not
Violate Defendant's Fourth Amendment Right

PEOPLE v. CLAEYS (2002) 97 Cal. App. 4th 55

Officer Balicki and another officer entered the property located directly behind Cory Claeys' property to investigate an anonymous tip that he was growing marijuana in his backyard. They did not obtain permission from the property owner, John Burke, prior to entry but did encounter Burke as they were leaving and told him they were conducting a narcotics investigation. Burke gave his consent at that time.

The two properties were separated by a wooden fence less than six feet tall. Burke's property sits on a hill and the officers were able to look into Claeys' backyard without standing on a stool or a ladder. Officer Balicki observed, without the use of any ocular devices, numerous marijuana plants near the patio and pool and in the tree line next to the fence. Some of the plants were over 10 feet tall.

Claeys plead guilty to cultivating marijuana and possessing marijuana for sale after the trial court denied his motion to suppress evidence and to quash the search warrant. The California Court of Appeal, Fourth Appellate District, affirmed the trial court's denial of Claeys' motion.

The Court noted that the trial court's order denying the motion was based in part on its finding that Burke implicitly gave the officers permission to enter his property, by giving it to them explicitly after the fact. Thus, the trial court avoided the issue of standing by concluding the officers had the right to be where they were when they made their observations. The Court pointed out that the caveat that an officer must have the right to be where the officer is when observing items considered to be in plain view was based on a long line of cases involving observations made from areas open to the public and those made after entry onto the defendant's property. The Court stated that it could not find any California cases, nor were any cited by the defendant, where a search has been held invalid under the federal constitution because the police trespassed onto property adjoining a defendant's property.

The Court concluded that under the facts at issue Claeys' Fourth Amendment rights stopped at his backyard fence because the plants were readily visible from his neighbor's property and he had no reasonable expectation of privacy in what could be seen from there.

How this affects your agency: Where searches are undertaken, or trespass onto property contemplated, the District Attorney's Office should always be consulted to ensure the legality of the action to be taken.

*********

EMPLOYMENT/LABOR

Binding Arbitration Regarding
Salary Matters For Public Safety
Employees Unconstitutional

County of Riverside v. Superior Court (Riverside Sheriff's Assoc.) (2002) 97 Cal. App. 4th 1103

SB 402, "Arbitration of Firefighter and Law Enforcement officer Labor Disputes," added sections 1299, et seq. to the Code of Civil Procedure and empowered unions representing public safety employees to declare an impasse in labor negotiations and required a local agency to submit unresolved economic issues to binding arbitration. Each party chooses an arbitrator, who together choose the third arbitrator. The panel then chooses, without alteration, between each side's last best offer, based on a designated list of factors.

The County of Riverside and the Riverside Sheriff's Association (RSA) reached an impasse in negotiations over compensation for employees of the probation department. RSA requested that the dispute be submitted to arbitration under CCP 1299, et seq, but the County refused. RSA sought, and the superior court granted, an order compelling the County to submit the dispute to arbitration, stating "The matters at issue, to wit, the possible disruption of law enforcement and firefighter services, are not matters of purely local concern but rather are of statewide concern. This statewide concern authorizes the Legislature to act ... ."

The California Court of Appeal, Second Appellate District, granted the County's motion for a writ of mandate ordering the Superior Court of Riverside County to set aside its order compelling arbitration. The Court held that SB 402 violated article XI of the California Constitution because it delegated to a private body the power to interfere with county money and perform a municipal function, and it impinged on the county's power to provide for the compensation of county employees.

In addressing the issue of State intervention in local public safety labor relations, the Court noted that the California Supreme Court has held that determination of salaries paid to local employees was a local matter, not one of statewide concern, and had stopped well short of endorsing state interference with local peace officer compensation. The Court pointed out that empowering public safety unions to force local agencies to submit salary disputes to binding arbitration was not necessary to ensure basic fair labor practices, without which unions could not fairly participate in the bargaining process.

The Court concluded that while courts give "great weight" to legislative pronouncements, the statement that "strikes taken by firefighters and law enforcement officers against public employers are a matter of statewide concern," ignored the simple fact that strikes and other work stoppages by public safety personnel are illegal (LC § 1962). The fact that the Legislature had chosen to deal with a problem on a statewide basis was not determinative of whether the statue related to a statewide concern (Sonoma County Organization of Public Employees v. County of Sonoma ,(1979) 23 Cal.3d 296, 316).

How this affects your agency: As of this moment, a union demand for binding arbitration can be resisted. Whether to do so is an internal decision to be made by the Chief or Sheriff and other appropriate city or county officials.

*********

Disabled Employee Bears Burden
Of Special Circumstances To Overcome
Accommodation Conflict With Seniority System

US Airways, Inc. v. Barnett (2002) 122 S. Ct. 1516

After Barnett injured his back, while a cargo handler, he transferred to a less physically demanding mail-room position. This position later became open to seniority-based employee bidding, under US Airways' seniority system, and employees senior to Barnett bid on the position. US Airways refused Barnett's request to accommodate his disability by allowing him to remain in the mail-room and he lost his job. Barnett then filed suit under the Americans with Disabilities Act. The District Court granted the company summary judgment finding that altering a seniority system would result in an "undue hardship" to both US Airways and its non-disabled employees. The Ninth Circuit reversed, holding that the seniority system was merely a factor in the undue hardship analysis and that a case-by-case, fact intensive, analysis was required to determine whether any particular assignment would constitute an undue hardship.

The United States Supreme Court held that an employer's showing that a requested accommodation conflicts with seniority rules was ordinarily sufficient to show, as a matter of law, that an "accommodation" was not "reasonable." The employee however remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in his/her particular case.

The Supreme Court noted that many lower courts reconciled the phrases "reasonable accommodation" and "undue hardship" in a practical way, holding that an employee, to defeat an employer's summary judgment motion, need only show that an "accommodation" seems reasonable on its face. The employer then must show special (case specific) circumstances demonstrating undue hardship. The Court then pointed out here, neither US Airways' position (that no accommodation violating a seniority system's rules was reasonable), nor Barnett's position (that "reasonable accommodation" authorizes a court to consider only the requested accommodation's ability to meet an individual's disability-related needs), was a proper interpretation of the ADA.

The question is whether a proposed accommodation that would normally be reasonable is rendered unreasonable because the assignment would violate a seniority system's rules. Ordinarily the answer would be "yes." The Supreme Court stated that the statue does not require proof on a case-by-case basis that a seniority system should prevail because it would not be reasonable in the run of cases that the assignment trump such a system's rules. Analogous case law has recognized the importance of seniority to employee-management relations, finding, e.g., that collectively bargained seniority trumps the need for reasonable accommodation in the similar Rehabilitation Act. Nothing in the statue suggests that Congress intended to undermine seniority systems.

The Supreme Court then pointed out that an employee remains free to show that special circumstances warrant a finding that, despite the seniority system's presence, the requested accommodation is reasonable on the particular facts. Special circumstances might alter the important expectations created by a seniority system. The employee might show that the employer, having retained the right to change the system unilaterally, exercises the right frequently, reducing employee expectations that the system will be followed. The employee might also show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter.

How this affects your agency: This case points out a need for "disability accommodation" to be addressed, in either the negotiation process and included in a memorandum of understanding and/or the employers personnel ordinances, specifically where there is a seniority based assignment system in existence or is being contemplated.

*********

CRIMINAL LAW/PROCEDURE

Secret Monitoring And Recording Inmate's
Unprivileged Jail Conversations With Visitors
Does Not Constitute Misconduct

People v. Loyd (2002) 27 Cal. 4th 997

Christine Loyd was awaiting trial for murder. The prosecutor requested the recording of her conversations with non-attorney visitors and the sheriff's department provided tapes of conversations between Loyd and three visitors. The prosecutor also requested and received tapes of telephone conversations Loyd had with her brother and another party. There was no taping of any conversation between Loyd and her attorney or anyone retained by her attorney. The prosecutor requested the taping to gather evidence for the prosecution of the murder, and to gain an indictment and subsequently prosecute Loyd for the murder of her mother.

Loyd was convicted of two counts of first degree murder and one count of arson and sentenced to prison for a term of 55 years to life. Prior to trial, Loyd sought a ruling on the legality of the taping of her personal visits and telephone calls. Loyd alleged prosecutorial misconduct under De Lancie v. Superior Court (1982) 31 Cal.3d 865, which bars monitoring inmate conversations unless necessary for security purposes.

The trial court denied Loyd's suppression motions and the Court of Appeal held the tape recording did not violate the Fourth, Fifth or Sixth Amendments to the United States Constitution and that suppression was not an available remedy.

The California Supreme Court held that because De Lancie had been superseded by statute at the time of the taping, the prosecutor's request for and use of the tape did not constitute misconduct under state law.

The California Supreme Court noted that jail inmates do not enjoy a justifiable expectation of privacy and that not only had the United States Supreme Court addressed this issue 40 years ago, it also embraced the principle that a suspect's custodial conversations did not enjoy a justifiable expectation of privacy. The Court did however protect a defendant's right to privacy regarding communications with counsel (In re Jordon (1972) 7 Cal.3d 930; People v. Lopez (1963) 60 Cal.2d 223), or where jail officers acted so that the suspect "and his wife were lulled into believing that their conversation would be confidential" and affirmed the general rule that "[a]bsent such unusual circumstances, [inmates and their visitors] can have no reasonable expectation that their jailhouse conversations will be private."

The Supreme Court concluded that the De Lancie case no longer correctly stated California law regarding inmate rights, stating that the 1994 amendment to Penal Code § 2600, now permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime.

How this affects your agency: This case illustrates the periodic changes in evidence gathering for the purpose of solving crime specifically in constitutionally sensitive areas. Prosecutors should always be consulted prior to formulating policy and procedure.

*********

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. If you have any questions or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.

Caseupdt.000.Vol7#1