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Public Employers: Public Safety
Liebert Cassidy Whitmore has had the privilege of representing public safety agencies for many years, proudly earning the trust and respect of several generations of police chiefs, sheriffs, and fire chiefs. LCW appreciates the emergency nature of employment issues in the public safety context.
As trusted advisors and vigorous litigators, our expertise covers a wide area, including:
- POBR and FBOR
- Wage and hour issues, including FLSA collective action defense
- Retirement and CalPERS appeals
- Disability and religious interactive process and accommodations
- Unfair labor practices
- California Labor Code (e.g., whistleblower retaliation)
- Discrimination, harassment and retaliation claims under Title VII of the 1964 Civil Rights Act and/or the Fair Employment and Housing Act
- The Military and Veterans Code and USSERA
- Claims under the California and United States Constitutions (e.g., First Amendment).
The collective breadth of expertise and experience is unmatched. LCW appreciates the emergency nature of employment issues in the public safety context so we are always available to provide prompt and expert consultation on the array of issues that routinely impact California’s public safety agencies:
Municipal and County Police and Sheriff’s Departments:
We author the CPER Pocket Guide on the Public Safety Officers Procedural Bill of Rights Act (POBR). Our appellate victories (see case studies) have shaped the way that public safety agencies conduct labor and employment relations on a daily basis. We have extensive expertise in advising law enforcement agencies on a wide array of issues, from performance and discipline issues (including internal affairs investigations), to disability accommodation and fitness for duty issues, to labor-management issues. We specialize in advocating for law enforcement departments in administrative hearings (e.g., discipline hearings, grievance arbitrations, and unfair practice charge hearings), and we routinely defend law enforcement clients in civil litigation in both state and federal courts.
We author the CPER Pocket Guide on the Firefighters Procedural Bill of Rights Act (FBOR). Our appellate victories (see case studies) have shaped the way that public safety agencies conduct labor and employment relations on a daily basis. We have extensive expertise in advising fire departments on a wide array of issues, from performance and discipline issues, to disability accommodation and fitness for duty issues, to labor-management issues. We routinely represent fire departments in administrative hearings (e.g., discipline hearings, grievance arbitrations, and unfair practice charge hearings), and we have extensive experience defending fire departments in civil litigation in both state and federal courts.
Campus Police and Public Safety Departments:
We have expertise in advising on or conducting internal affairs investigations, prosecuting administrative disciplinary proceedings and defending law enforcement (sworn and non-sworn) in civil litigation in both state and federal courts.
We also specialize in all aspects of the negotiating process and in grievances and impasse proceedings arising in connection with the meet and confer process.
LCW also provides extensive training to management staff and supervisors to prevent and avoid liability in each of the areas identified above.
Our firm has expertise in the prosecution of disciplinary appeals involving public safety officers. We are frequently retained to provide advice and representation to public entities regarding high profile incidents involving law enforcement personnel. For example, we represented a public transportation agency in an arbitration stemming from a high-profile officer-involved shooting, and we represented a city in the prosecution of multiple officers’ terminations after a high-profile use of force incident. When public safety agencies require advice on managing their response to critical incidents and officer misconduct, LCW attorneys are the experts that many agencies across the State look to first for help.
On behalf of both employers and individually named defendants LCW defends complex (class and collective actions) and high-profile litigation through trial and the appellate process (when necessary) in state and federal courts. We have successfully defended alleged violations of the Peace Officers Bill of Rights Act, the Firefighters Bill of Rights Act, the Fair Labor Standards Act, the California Labor Code, Title VII of the 1964 Civil Rights Act, the Fair Employment and Housing Act, the Americans with Disabilities Act, the Confidentiality of Medical Information Act, the Military and Veterans Code, the Uniformed Services Employment and Reemployment Rights Act, First Amendment Retaliation, Whistleblower Retaliation, and claims brought under the California and United States Constitutions.
Clients have prevailed in multiple published appellate cases that have helped public safety employers more effectively manage their employees. Published decisions on behalf of public safety employers include, among others:
- Berndt v. City of Los Angeles et al. [621 Fed.Appx. 368] – Approximately 20 Police officers employed by the City of Los Angeles’ Police Department (LAPD) filed a lawsuit in federal court alleging various wage and hour violations under the Fair Labor Standards Act (FLSA) and provisions of state law. After the trial court granted the City’s motion to dismiss, the only remaining claims were allegations that (1) the City’s policy of paying police officers with compensatory time off (CTO) for non-FLSA hours worked violated the FLSA, and (2) the City should have paid overtime to the plaintiffs using a 40-hour overtime threshold for a seven-day period rather than the 171-hour overtime threshold for a 28-day period that the City adopted pursuant to the FLSA’s section 207(k) (also known as the 7(k) exemption). Regarding the 7(k) exemption, the plaintiffs argued they did not qualify for the exemption because they were purportedly no longer performing “law enforcement activities” when they were assigned to do administrative work pending internal investigations. The City successfully moved for summary judgment on both FLSA claim, and the plaintiffs appealed. The Ninth Circuit affirmed the District Court’s decision and held that the FLSA regulations expressly permit employers to compensate employees with CTO for “non-FLSA” overtime, and the Ninth Circuit also agreed that the City properly established the 7(k) exemption and that the police officers did not present sufficient evidence to demonstrate that it did not apply to any of them individually. Geoffrey S. Sheldon argued the City’s case to the Ninth Circuit Court of Appeals.
- Ellins v. City of Sierra Madre [244 Cal.App.4th 445] – LCW attorneys Laura Drottz Kalty and Danny Y. Yoo successfully represented the City in upholding its termination of police officer John Ellins for CLETS violations and insubordination. The Court of Appeal confirmed that the City gave sufficient notice of the nature of the investigation prior to Officer Ellins’ interrogation pursuant to the Public Safety Officers Procedural Bill of Rights Act (POBR), and clarified that “reasonable” notice is required in order to allow an employee the opportunity to “meaningfully consult” with his/her representative. At the Court of Appeal, the issue was limited to whether the City had properly notified Ellins of the nature of the investigation “prior to” his interrogation under the POBR. Ellins argued that he did not have a meaningful opportunity to consult with his attorney about the specific nature of the investigation. The Court of Appeal disagreed and held that while an officer should be notified of the nature of the investigation “reasonably prior to” the interrogation, the agency can delay disclosure “if it has reason to believe that earlier disclosure would jeopardize the safety of any interested parties or the integrity of evidence under the officer’s control.” However, after disclosure of the nature of the investigation – even if it is immediately prior to the interrogation – the agency must give the officer a meaningful opportunity to consult with his or her representative. Although this was a case decided under the POBR, the application of this decision will also likely apply to the Firefighter Bill of Rights (FBOR). The FBOR was modeled after the POBR, and the language in Government Code section 3253(c) in the FBOR is virtually identical to Government Code section 3303(c) in the POBR.
- County of Los Angeles v. Association for Los Angeles Deputy Sheriffs, et al. [234 Cal.App.4th 459] – LCW successfully represented the County in a case where after entering into MOUs, two public safety unions filed “class” grievances on behalf of approximately 10,000 current or former employees seeking MOU overtime pay for “donning and doffing” activities, as well as overtime for “off-the-clock” supervisory activities. After the County’s Employee Relations Commission granted the unions’ request for class arbitration, the County and its Sheriff’s Department sued the Commission and the two unions for declaratory relief, injunctive relief and a writ of mandate. The unions, in turn, filed a cross-complaint seeking to litigate their 10,000 members’ contractual overtime claims in a class action venued in Superior Court. Ultimately, the Court of Appeal issued a published opinion siding with the County/Sheriff’s Department, i.e., the Court of Appeal held that since the parties never contracted for “class” arbitration the only way the various overtime claims could be pursued was in individual arbitrations.
- Nakamura v. City of Riverside Police Department, et al. [WL 7761996], (Cal .Super.) (Trial Order) – Successfully defended the City of Riverside and seven individual defendants, from demurrer through trial and the final non-suit, in a case where a police officer alleged eight causes of action. After 2 demurrers, which resulted in the dismissal of 4 of the individual defendants and 3 causes of action, Plaintiff’s Third Amended Complaint alleged claims for: 1) Unlawful Search and Seizure; 2) Violation of the Public Safety Officer’s Procedural Bill of Rights; 3) False Imprisonment; 4) Conversion; and 5) Violation of 42 U.S.C. section 1983. The Court granted summary adjudication as to all of Plaintiff’s causes of action except the third cause of cause of action for false imprisonment against the City and the three individual defendants. The Court granted non-suit as to this cause of action after a nine-day jury trial.
- Wallace v. Stanislaus County [WL 10134357] (Cal.Super.) (Trial Order) – Represented the County in a 4-week jury trial and obtained a unanimous defense verdict on both claims before the jury: failure to accommodate a disability and failure to engage in the interactive process. Deputy Wallace, who had filed 15 workers’ compensation claims while on duty, had a list of physical restrictions that were established by his doctor, and as a result was re-assigned to “light duty” as a bailiff. Wallace refused the re-assignment, and after saying that he did not agree with doctor’s restrictions, asked for a different assignment, When his request was denied, he sued the County. Represented the County in the appeal of the 2013 verdict in favor of the County after jury trial. The verdict and judgment entered in the County’s favor were successfully upheld on appeal.
- Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, Los Angeles County Sheriff’s Department et al [166 Cal.App.4th 1625] – The California Court of Appeal held that pre-interrogation joint meetings by deputies involved in shootings have limitations.
- Maciel v. City of Los Angeles [569 F.Supp.2d 1038 (C.D.Cal)] – A federal District Court found in favor of the City on all claims after a seven-day bench trial. The Court found that Maciel failed to present credible evidence supporting his assertion that he worked overtime without reporting it, or that management either knew or should have known that he was not following the Department’s overtime reporting policy. Finally, the Court found that Maciel was not entitled to overtime compensation for his donning and doffing activities because the time spent on those activities did not exceed the applicable threshold for overtime compensation.
- Benach v. County of Los Angeles [149 Cal.4th 836] – The Court held that removing a deputy from a special assignment as a pilot “without a concomitant loss of pay” is not a punitive action entitling the officer to a POBR administrative appeal.
- Claremont Police Officers Association v. City of Claremont [39 Cal.4th 623] – A case handled through the court of appeal – the California Supreme Court held that implementation of a racial profiling study by a police department was a management prerogative and was not a mandatory subject of bargaining under the Meyers-Milias-Brown Act.
- Steinert v. City of Covina [146 Cal.App.4th 458] – The Court of Appeal held that a peace officer was not entitled to the protections of the Act when asked questions by her supervisor in the ordinary course of duty where the supervisor did not suspect that the officer had engaged in serious misconduct.
- Gilbert v. City of Sunnyvale [130 Cal.App.4th 1264] – The Court of Appeal limited a police officer’s right to receive investigatory documents under both the Skelly due process procedures and the Act.
- Upland Police Officers Association v. City of Upland [111 Cal. App.4th 1294] – The Court of Appeal held that a peace officer’s right of representation under Government Code § 3303(i) is not unlimited. The Court of Appeal held that an officer could not delay an internal affairs interrogation by selecting a representative who was not reasonably available.
Members of our firm have negotiated literally hundreds of memoranda of understanding with all varieties of safety employee groups. We have negotiated virtually every issue within the scope of bargaining, including such issues as: wages, hours, health and retirement benefits, leaves and discipline.
We believe that our experienced and practical approach to negotiations, as well as our problem-solving orientation, results in a smoother and more expeditious negotiating process, fewer sustainable grievances or unfair labor practice charges, and ultimately, a more cost-effective method of collective bargaining.
Our negotiators are experts in all forms of collective bargaining and impasse resolution processes, such as mediation, factfinding and interest arbitration. LCW negotiators have been directly involved in hundreds of impasse resolution proceedings, including mediation, fact-finding and interest arbitrations. Related to this area, our firm has conducted numerous trainings and briefings on the new fact-finding requirements imposed by AB 646 for agencies subject to the Meyers-Milias-Brown Act, and our negotiators have handled a fair number of actual fact-findings under the new law. In addition, our labor negotiations practice group has developed strategic plans for navigating the laws and regulations on impasse resolution procedures, including unilateral implementation of the agency’s last, best and final offer.
LCW are experts in the implementation of the laws and regulations pertaining to public employee retirement plans, including the Public Employee Retirement System (“PERS”), the County 1937 Retirement Act, and local agency retirement laws, as well as on retiree health benefit issues. In particular, LCW is well versed on the details of the new Public Employees Pension Reform Act of 2013 (“PEPRA”) and how the new law impacts agency obligations at the bargaining table regarding retirement formulas, employer-employee pension contributions and rules on reportable compensation. In addition, we regularly provide advice and counsel on how to negotiate pension contract amendments, disability retirement procedures and obligations, service credit, GASB issues, unfunded liability issues, retiree health benefits and vested rights issues.
We also regularly advise clients on employee performance and discipline issues, absenteeism and employee leaves, fitness-for-duty and disability accommodations issues.
Members of the firm have many years of experience representing our clients in all phases of proceedings before the Public Employment Relations Board (“PERB”), from consultation and responses to unfair labor practice charges through PERB hearings and court appeals. This experience is utilized by the firm’s negotiators to identify bargaining practices and positions that could compromise the agency’s position before PERB. And, if our clients are charged with an unfair labor practice, LCW is able to provide the full range of representational services in defending the charge before PERB.
We provide advice and counsel to law enforcement agencies on a myriad of personnel issues, including but not limited to: measuring an officer’s behavior against existing department standards, such as a use of force or conduct unbecoming policy; we are consulted about policy decisions around updates to use of force policies, and whether a citizen review board should be implemented to review uses of force; we advise and help conduct internal affairs investigations into officers; we advise on Pitchess and Brady issues; and we assist with responding to critical incidents like officer-involved shootings to ensure that a personnel investigation that is POBR compliant is initiated. We also regularly handle discipline hearings involving police misconduct, including alleged excessive uses of force. We also consult with our clients when officer- involved shootings occur and provide advice and counsel regarding the investigative process to insure the personnel investigation is proper and compliant with the POBRA.
We regularly provide advice to Chiefs, Sheriffs and their command staff regarding use of force incidents, including its application in officer discipline, policies, procedures, internal investigations and litigation. The firm has also defended agencies against allegations of excessive force, false arrest, and other civil rights violations.
- SAN FRANCISCO
- LOS ANGELES
- SAN DIEGO