Trial Court Properly Dismissed Lawsuit Local Government Officials Filed Against PERB

CATEGORY: Client Update for Public Agencies, Fire Watch, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Mar 07, 2022

A group of elected local government officials — including members of some California city councils, school boards, and special purpose districts– filed a complaint against the Public Employment Relations Board (PERB).  The complaint made a pre-enforcement challenge to California Government Code Section 3550.  Section 3550 states in part: “[a] public employer shall not deter or discourage public employees . . . from becoming or remaining members of an employee organization.”  The elected officials alleged that as part of their duties, they often engage directly in labor-management discussions, comment publicly on bargaining proposals, or take positions on the terms of a proposed collective bargaining agreement.  However, they claimed that after the enactment of Section 3550 in 2017, they have refrained from speaking about issues relating to public unions.  While the elected officials did not contend that the PERB had taken any enforcement action against them or their agencies, they alleged that if they were to speak out, their agencies would face threats of unfair labor charges.

As a result, the officials sued PERB alleging that Section 3550 violates their First Amendment rights. The U.S. district court dismissed the case finding, among other things, that the elected officials could not bring the action because Section 3550 applies only to “public employers,” and not to individual elected officials.  The elected officials appealed.

On appeal, the Ninth Circuit panel concluded that the district court was right to dismiss the case.  First, the panel noted that Section 3550 does not regulate the officials’ individual speech.  The panel also noted that any restrictions the statute does impose on their ability to speak on behalf of the public employers they represent did not injure their constitutionally-protected individual interests.  The panel held that the officials had not shown that they had a well-founded fear that PERB would impute their statements in their individual capacities to their public employers, or that they incurred an injury sufficient enough to allow them to pursue the issue.

Second, the panel held that the officials failed to show that the district court erred in determining that any amendment to their complaint would be futile.  The officials were not able to provide any additional details they would add to their lawsuit if given the opportunity to do so.

For these and other reasons, the panel remanded the case to the district court to enter judgment dismissing the case without prejudice.

Barke v. Banks, 25 F.4th 714 (9th Cir. 2022).


The court explained that Government Code Section 3550 was “part of a broader legislative package designed to address the impact of Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018).”  In Janus, the Supreme Court held that the First Amendment barred “States and public-sector unions” from “extract[ing] agency fees from nonconsenting employees.” The 2018 amendment added the language prohibiting a public employer from deterring or discouraging public employees “from authorizing dues or fee deductions to an employee organization,” presumably to minimize the financial impact of the Janus decision on public-sector unions.

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