A Labor Agreement That Requires an Employee, When the Employee Appeals His/Her Discipline or Discharge, to Pay One-Half the Cost of the Hearing Officer, Violates the Employee’s Due Process Rights, Which Can Not Be Waived by a Collective Bargaining Agreement.

August 10, 2005
April Florio was terminated from her employment as a police dispatcher with the City of Ontario. Florio appealed the termination. According to the applicable Memorandum of Understanding (MOU), the cost of the hearing officer shall be shared equally between the City and the appellant. Thus, Florio was required to pay $3,290 for her portion of the cost of the hearing officer for the four-day hearing.

Florio filed a petition for writ of mandate against the City seeking recovery of her $3,290, and an injunction barring the City from enforcing the MOU provision. The trial court granted the petition, and the Fourth District Court of Appeal affirmed.

In California Teacher’s Association v. The State of California (1999) 20 Cal.4th 327 (CTA), the California Supreme Court held unconstitutional a cost-sharing provision in the Education Code that required 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. Likening it to the Education Code provision, the Court held that the cost-sharing provision in the City of Ontario’s MOU was unconstitutional, stating that Florio’s due process rights include the right to a meaningful hearing without having to pay for it.

The Court also held that Florio had not waived her due process rights by her Union having contractually agreed to the provision in the MOU. An employee’s right to due process cannot be waived in a collective bargaining agreement. Thus, the procedures adopted in the agreement must comport with due process requirements.

This decision has a significant impact because it is not uncommon for agencies to have negotiated a similar cost sharing provision. There have already been claims made on behalf of employees for disregarding the negotiated cost sharing provision based on this decision. Assuming that the decision will not be reviewed by the California Supreme Court, what alternatives does an agency have in responding to such claims, short of simply paying the full cost of the arbitrator or other hearing officer? That will be influenced by the terms of the MOU. If half of the cost is payable by the Union as the contracting party rather than the appealing employee, there is an argument that the decision is not controlling. Also, most MOUs contain savings clauses which provide that if any part is found to be illegal, that term will be subject to renegotiation by the parties. Even in the absence of such a clause, the agency may want to take the position, that inasmuch as the agency has lost the benefit of its bargain, the matter is subject to renegotiation. There are a number of negotiating positions an agency might take in such renegotiations. If you have any questions, or seek further information, please contact one of our offices.

Florio v. City of Ontario., 2005 WL 1533135 (Cal. App. 4 Dist.).
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