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Court Of Appeal Finds PERB Skipped Initial Analysis Of Whether Measure P Had A Significant And Adverse Impact

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Aug 04, 2022

In 2016, the County of Sonoma (County)’s Board of Supervisors enacted an ordinance creating the County’s Independent Office of Law Enforcement Review and Outreach (IOLERO) to provide independent review and audit of law enforcement policies and administrative investigations.  Among other things, IOLERO could propose independent recommendations or determinations regarding administrative investigations into peace officer conduct.

In 2020, the Board saw a need to expand IOLERO’s powers and duties to enhance law enforcement transparency and accountability.  The Board decided to introduce an initiative on the ballot, known as Measure P, for voters to consider during the November election.  Measure P proposed numerous changes to IOLERO’s enabling ordinance, including empowering IOLERO to independently investigate: whistleblower complaints; Sheriff’s Office investigations into deaths of individuals in the Sheriff’s custody; and incomplete or otherwise deficient investigations.  Measure P also authorized IOLERO to issue subpoenas to compel the production of documents or the attendance and testimony of witnesses.  Measure P maintained restrictions on  IOLERO from deciding “policies, direct[ing] activities, or impos[ing] discipline on other County departments, officers and employees.  It is significant that Measure P did not alter the part of the ordinance that required IOLERO and the Sheriff to collaborate to create protocols to “further define and specify the scope and process providing for IOLERO’s receipt, review, processing, and audit of complaints and investigations in a mutually coordinated and cooperative manner.”

On August 6, 2020, the Board passed a resolution to allow Measure P to be placed on the ballot.  That same day, the Sonoma County Deputy Sheriffs Association (DSA) and Sonoma County Law Enforcement Association (SCLEA; collectively “Associations”) learned of the scheduled vote on the measure and requested the County meet and confer regarding the measure’s placement on the ballot.  The County did not bargain with the Associations before placing Measure P on the ballot.  The voters ultimately passed Measure P by a majority vote.

The Associations, representing officers and other employees working for the Sheriff, filed unfair practice charges against the County.  They alleged that the County violated the MMBA by failing to: notify them about Measure P; and bargain over the decision to place the measure on the ballot or the effects of that decision.  Informal attempts to resolve the dispute failed, and PERB reviewed the matter.

In its decision, PERB concluded that the County’s decision to place certain amendments to Measure P on the ballot was subject to bargaining and that the amendments were subject to “effects” bargaining.  As a remedy, PERB severed the subject amendments from Measure P, declaring them void and unenforceable as to those employees who the Associations represented.  PERB also ordered the County not to enforce or apply those amendments to employees represented by the Associations, and to meet and confer with them before placing any matter on the ballot that affects employee discipline and/or other negotiable subjects.  The County appealed to the California Court of Appeal.

On appeal, the County argued that PERB failed to make a preliminary assessment of whether the Board’s decision to place Measure P on the ballot significantly and adversely affected the Associations’ members’ working conditions.  They contended that this failure caused PERB to erroneously conclude that bargaining was necessary before first determining whether the Measure was a matter within the scope of representation under the MMBA.  The Court of Appeal agreed with the County.

Both parties agreed that the decision to place Measure P on the ballot was a “fundamental managerial decision”. In Claremont Police Officers Assn. v. City of Claremont, the California Supreme Court addressed “whether an employer’s action implementing a fundamental decision” was subject to the bargaining requirement under the MMBA by establishing a three-prong test.  Under the first prong, if the management action does not have a significant and adverse effect on wages, hours, or working conditions of the bargaining-unit employees, then there is no duty to meet and confer.  Only if there is a significant and adverse effect should the second and third prongs be considered.

In this case, however, PERB conceded that it did not apply the Claremont test to determine whether Measure P had a significant and adverse effect on wages, hours, or working conditions.  Given that there were no provisions of Measure P that on their face impacted wages, hours, or working conditions, the California Court of Appeal reasoned that PERB erroneously skipped the first prong of Claremont and failed to establish whether the matter was even within the scope of representation under the MMBA in the first place.

Regarding effects bargaining, the Court noted there was no dispute that Measure P’s provisions involving IOLERO:  directly accessing, reviewing, and publicly posting body-worn camera video footage; and being able to directly contact witnesses and subjects of investigations, had foreseeable effects that subjected them to the MMBA’s effects bargaining requirements.  The Court rejected the County’s argument that PERB was conflating the firm decision date and the implementation date.  The Court agreed with PERB that, in line with past precedent, the County was obligated to bargain those effects with the Associations before placing the Measure on the ballot, not just before implementing the subject amendments.

Finally, the Court concluded that PERB exceeded its authority through its remedial order declaring Measure P’s provisions void and unenforceable as to the Associations’ members.  The Court remanded the matter to PERB to strike its remedial order and determine whether Measure P was within the scope of representation under the MMBA.

County of Sonoma v. Public Employment Relations Board (Sonoma County Deputy Sheriff’s Association), 80 Cal.App.5th 167 (2022).

Note:

The Court rejected an additional argument from the County that PERB lacked remedial authority over peace officers.  The Court concluded that Section 3511 outlining PERB’s jurisdiction included peace officer Associations.

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