County’s Standard Administrative Leave Gag Order Interfered with Peace Officer’s and Union’s Rights

Category: Client Update
Date: Mar 1, 2019 01:02 PM

The County of Santa Clara initiated an investigation against Lance Scimeca, a peace officer and the president of the Santa Clara County Correctional Peace Officers’ Association (“CPOA”), for alleged violations of the County’s workplace communications policies. The County placed Scimeca on paid administrative leave and directed him to stay off of Sheriff’s Office property. The County also ordered him not to discuss the matter “with any witnesses, potential witnesses, the complainant, or any other employee of the Sheriff’s Office other than [his] official representative.”

CPOA objected that the County’s gag order prevented Scimeca from meeting with union members in the workplace and from attending meet and confer sessions. The County responded by informing Scimeca that he could continue his union activities, such as: discussing union matters with CPOA members; representing CPOA members in disciplinary proceedings; and participating in negotiations with the County. But, the County did not change its directive that Scimeca not discuss the allegations under investigation with any witnesses, potential witnesses, the complainant, or other employees.

The Public Employment Relations Board (PERB) concluded that prohibiting Scimeca from communicating with his coworkers about the allegations against him violated both:  his MMBA right to communicate with others about working conditions; and the CPOA’s MMBA right to represent the officer. PERB noted that the right to communicate with others about working conditions is one of the fundamental MMBA rights, and that “working conditions” include the circumstances underlying alleged employee misconduct.

Specifically, PERB noted that by preventing Scimeca from communicating with witnesses or potential witnesses, Scimeca was not able to make inquiries that could have helped him prepare for his investigatory interview. This in turn prevented Scimeca from giving effective assistance to his CPOA representative during the investigation. Additionally, by prohibiting Scimeca from communicating with his coworkers, the County denied him the opportunity to assert his innocence to other union members, which could have eroded members’ confidence in union leadership and compromised the effectiveness of CPOA. This interfered with the union and Scimeca’s protected rights.

Once the employer is shown to have interfered with its employees’ MMBA rights, the burden shifts to the employer to provide a legitimate justification for its conduct. The County argued that it had a legitimate business necessity for the gag order so as to:  (1) ensure the investigation was free from improper collusion or coercion by the subject employee; and (2) treat all employees under investigation the same.  The County also said that the gag order was justified because correctional deputies work in dangerous conditions with real threats of violence.

PERB found that the County did not meet its burden of explaining why confidentiality was necessary in this case. First, PERB found that the County’s stated concerns were only general and did not specifically apply to Scimeca’s case.  Second, PERB said the County did not offer any facts to explain why safety would have been compromised if Scimeca had been able to communicate during the investigation, or whether Scimeca’s alleged misconduct related to abuse of his authority or to intimidation of employees or inmates. PERB concluded that the County had no particular reason for directing Scimeca not to communicate with his coworkers regarding the investigation.  Both PERB and the NLRB have held that generalized or blanket gag orders during investigations are not sufficient to outweigh employee representational rights.

In addition, PERB was not persuaded by the County’s argument that it could not provide the basis for its directive to Scimeca because Scimeca refused to waive his privacy rights in his peace officer personnel records.  PERB noted that the County could have filed the necessary “Pitchess” motion to attempt to reveal Scimeca’s records, but it did not do so.

PERB concluded that the County’s gag order interfered with not only Scimeca’s rights to discuss the terms and conditions of his employment with co-workers, but also with the right of the CPOA to represent its members in their employment relations with the County.

County of Santa Clara, PERB Decision No. 2613-M (2018).

Note:
NLRB and PERB precedents do not allow blanket gag orders.  Instead, the employer must first analyze whether in any given investigation:  witnesses need protection; evidence is in danger of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover up.   Agencies are encouraged to review and update their notices of investigation and administrative leave. LCW’s Workbooks, which are available through subscription to the Liebert Library, provide updated notices to help ensure that public agencies are complying with the requirements of this frequently changing area of law.  Go to https://liebertlibrary.com/ for more information. 

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