LEGAL UPDATE

by Straun W. Boston, Esq.

STATE EMPLOYEE DISCIPLINE APPEAL PROCEDURE HELD UNCONSTITUTIONAL

The memoranda of understanding (MOU) between four state employee bargaining units that allowed employees to challenge disciplinary actions either by seeking review before the State Personnel Board (SPB) or by pursuing a grievance arbitration procedure that bypassed the SPB has been held to be unconstitutional. (State Personnel Board v. Department of Personnel Administration (2005) 37 Cal.4th 512.)

In 1998, the State Personnel Board sought a writ of mandate challenging provisions of the Department of Forestry and Fire Protection MOU that provided the alternative mechanism for litigating disciplinary actions. Three other MOUs with the same provision became part of the lawsuit.

At issue was the provision in the California Constitution which mandates that the State Personnel Board "shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions." (Cal. Const., art. VII, § 3, subd. (a), emphasis added.) In finding the MOU provision unconstitutional, the state Supreme Court adopted the court of appeals rationale that allowing disciplined state civil service employees to bypass SPB review would violate the constitutional mandate that state civil service appointments and promotions be based solely on merit.

The court reasoned California's constitutionally-mandated merit based system of civil service, which is administered by the SPB, to wholly divest the board of authority to review employee disciplinary actions in favor of an MOU created review board conflicts with the fundamental purpose of the state constitution. The court further stated that the merit based civil service system exists not for the sole benefit of the employee, but to achieve efficiency and economy in the State government to be achieved by allowing appointments and promotions only based on merit. Thus, public interest would be subverted if various ad-hoc boards, operated beyond the control of the SPB.

COURT AWARDS SAN MATEO OFFICER BACK PAY IN FITNESS FOR DUTY APPEAL

Finding for a San Mateo Police Officer who was placed on unpaid administrative leave following a medical evaluation which found him "unfit for duty," the First District Court of Appeal has held in an unpublished decision the city violated the officer's due process rights by failing to pay him pending a hearing on his fitness for duty. (Giusto v. City of San Mateo (2006) 2006 WL 805072)

Officer Guisto was placed on unpaid leave, following a finding by a city doctor that Guisto was "unfit for duty." He filed a petition for a writ of mandate directing the city to pay him for the seven-month period he remained on unpaid leave status, and to credit him for the discretionary leave credits he expended during that period.

The court held under California law an individual employed in the public sector who has attained the status of "permanent employee" has a "property interest in the continuation of his [or her] employment which is protected by due process." The court based is rationale on two cases: Skelly v. State Personnel Board (1975) 15 Cal.3d 194 and Bostean v. Los Angeles Unified School District (1998) 63 Cal.App.4th 95. In Bostean, the court found that even a mere suspension of a public employee's right to continued employment may amount to a taking for due process purposes.

The court found placing Guisto on unpaid leave was a deprivation of his property interest in continued paid employment with the city. The court held Guisto was not afforded a meaningful opportunity to respond before the city took away his right to continued employment. Furthermore, Guisto was entitled under Skelly to an opportunity to respond before the city placed him on unpaid administrative leave.

BINDING INTEREST ARBITRATION LAW AGAIN FOUND UNCONSTITUTIONAL

The San Bernardino County Superior Court has rejected the Legislature's latest attempt to mandate binding interest arbitration for public safety labor unions. In an unpublished decision, the court held the binding arbitration law the Legislature re-enacted in 2003 in response to a previous constitutional challenge still did not meet constitutional requirements. (Adelanto Community Correctional Facilities Employees Association v. City of Adelanto (2005) San Bernadino County Superior Court, Case No. VCVVS037008.)

In 2000, Governor Gray Davis signed Senate Bill 402, mandating binding interest arbitration for county peace officer and fire fighter unions when the parties reached impasse in collective bargaining. The California Supreme Court found the law to be unconstitutional because the state constitution vests the exclusive power to fix compensation of county employees in county boards of supervisors and the delegation of the matter to a third party was unconstitutional.

In 2003, the legislature re-enacted and Davis again signed into law the same bill with one minor change. The new law provided a board of supervisors, by unanimous vote, could override the determination of the labor arbitrator.

The San Bernardino Superior Court found that provision unconstitutional because the "unanimous vote" provision gives substantive veto power to any single member of a board of supervisors. "Both the Constitution and the Supreme Court's decision in Riverside contemplate that the charter city's or county's exercise of its final determination of an arbitrator's award be exercised in the same manner as any other determination made under their respective charters."

No other California court has yet ruled on the revised legislation. The decision does not prevent unions from continuing to reach binding arbitration agreements in local jurisdictions, whether by agreement with the employer or by popular vote.