LEGAL UPDATE
By Roy Yang

ARBITRATION COST-SHARING HELD UNCONSTITUTIONAL

Public employees who appeal a disciplinary action no longer may be forced to share the costs of the hearing officer. The Fourth District Court of Appeal has struck down as unconstitutional the provision in a memorandum of understanding that required an employee to pay half the costs of a hearing officer in a discipline appeal. (Florio v. City of Ontario (2005) 130 Cal.App.4th 1462.)

April Florio, a police dispatcher fired by the City of Ontario, paid $3,290 as her share for the costs of a hearing officer, as required by the MOU between her union and the city. She sued the City for those costs, and obtained a trial court ruling the MOU provision was unconstitutional.

On appeal by the City, the Fourth District adopted the reasoning used by the California Supreme Court in California Teachers Association v. State of California (1999) 20 Cal.4th 327, and upheld the trial court’s decision. The Florio court reasoned the cost-sharing requirement would have a "chilling effect" on an employee's exercise of her due process rights because the duration of the hearing, and therefore the cost of the hearing officer, was uncertain. The MOU provision was unconstitutional because it required Florio to pay for her due process right to a meaningful hearing.

The court also held, consistent with long-standing labor law, that a union may not waive the constitutional rights of its members. Thus, even though Florio's labor union had bargained for the cost-sharing provision, the provision was unenforceable because it abrogated her fundamental constitutional rights.

COURT IMPOSES NEW LIMITS ON RIGHT TO OBTAIN PRE-DISCIPLINARY MATERIALS

Rejecting the appeal of a City of Sunnyvale police officer who sought pretermination disclosure of all the documents used to fire him, the Sixth District Court of Appeal has imposed new limits on the right to documents under Skelly v. State Personnel Board and the Public Safety Officers' Procedural Bill of Rights Act. (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264.) The court held Skelly does not require the production of all materials identified by an internal affairs investigation, and Government Code section 3303(g) does not require "all the materials amassed in the course of the investigation, such as raw notes, written communications, records obtained, and interviews conducted, be provided to the officer following the officer's interrogation."

Officer Randall Gilbert was fired from the Sunnyvale Department of Public Safety for inappropriate access to CLETS. He also was a subject in a federal criminal investigation into a prostitution ring. After he was fired, Gilbert requested the department provide him with materials relating to the criminal investigation as part of his predisciplinary "Skelly package." The department withheld that information, claiming it was unrelated to the disciplinary action and its release would compromise the criminal investigation.

The court relied on two U.S. Supreme Court cases, Arnett v. Kennedy (1974) 416 U.S. 134, and Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, to hold that Gilbert was entitled only to an explanation of the employer's evidence. The court held evidence supporting a disciplinary action is sufficient if it enables the employee to respond to the allegations at a pre-deprivation hearing.

The court also held, "[c]onstitutional principles of due process do not create general rights of discovery." Government Code section 3303(g), the court wrote, is not intended to provide peace officers with wide discovery rights akin to those enjoyed by a criminal defendant, but only to prevent abuse by law enforcement employers.

PERMANENT APPOINTMENT OF STATE EMPLOYEES BASED SOLELY ON SENIORITY IS UNCONSTITUTIONAL

A seniority-based "post and bid" procedure negoatiated as a means of filling job vacancies has been declared unconstitutional by the California Supreme Court. (State Personnel Board v. California State Employees Ass'n (2005) 36 Cal.4th 758.) The court prohibited the state from implementing similar seniority-based hiring systems on the basis that hiring by length of service violates the merit principle codified in the state Civil Service Act.

The California State Employees Association (CSEA) negotiated a MOU for certain state bargaining units providing seniority-based "post and bid" procedure for filling job vacancies. The State Personnel Board (SPB) filed a petition for writ of mandamus challenging the MOU on the grounds it violated the state’s merit principle.

The Court stated: "By dictating an absolute seniority preference in hiring, and foreclosing appointing powers from interviewing eligible candidates and considering a broader and more meaningful range of merit-based criteria as appropriate to determine the candidate most qualified for a posted position, the programs undermine the constitutional mandate that appointments and promotions be based on merit."

ERB ACTION MUST BE BROUGHT WITHIN SIX MONTHS

The California Supreme Court upheld an appellate decision shortening the applicable limitations period for unfair practice charges filed with the Public Employment Relations Board (PERB) under the Meyers-Milias-Brown Act (MMBA) from three years to six months. (Coachella Valley Mosquito and Vector Control District v. California Public Employment Relations Board (2005) 35 Cal.4th 1072.)

On July 6, 2005, the California School Employees Association filed an unfair labor practice claim against the Coachella Valley Mosquito and Vector Control District with PERB. PERB found the District in violation of labor practices from 1999 to 2001. Upon petition for writ of mandate by the District, the case was eventually decided by the Supreme Court of California.

The Supreme Court found PERB lacked jurisdiction over the cases because a six- month, rather than a three- year, limitations period applied to Meyers-Milias-Brown Act unfair practices charges filed with PERB. This six-month statute of limitations period was held retroactive to July 1, 2001, provided the parties were given reasonable time in which to bring suit. MMBA unfair practice charges occurring before July 1, 2001, are timely filed with PERB if filed within three years of the occurrence of the unfair practice, or within six months of July 1, 2001, whichever is sooner.

Roy Yang is an associate attorney with Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer. He represents public employees throughout California.