February 2024
Fire Watch
Table Of Contents 03
08
Public Records
Did You Know?
05
09
Retirement
06
Meyers-MiliasBrown Act
Consortium Call Of The Month
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On The Blog
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Governmental Claims
Contributors: Cynthia O’Neill Partner | San Francisco Ashley Sykora Associate | Los Angeles
Nathan Price Associate | Los Angeles
Connect With Us! Copyright © 2024 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com
Fire Watch is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Fire Watch should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.
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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
Peace Officer Record Disclosure Law Supersedes Contrary Secrecy Laws.
February 2024
public Records interpret the new law otherwise would “nullify” its application to a significant swath of officer-related records.
The Court found support for its interpretation in Penal Code section 832.7 was amended to promote Penal Code section 832.7(b)’s legislative history. That transparency and public access to certain peace officer history emphasized that the public has a right to know records. Under section 832.7(b), records relating to all about serious police misconduct, as well as about officers who commit specified types of harmful or officer-involved shootings and other serious uses of unlawful conduct are public records under the California force. Concealing officer violations of civilians’ rights, Public Records Act (CPRA). or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, The First Amendment Coalition and KQED Inc. (the makes it harder for hardworking peace officers to do Requestors) filed CPRA requests for records with the their jobs, and endangers public safety. California Attorney General and the Department of First Amendment Coalition et al v. Superior Court, 98 Cal. Justice (Department) relating to: 1) a peace or custodial App5th 593 (2023). officer’s discharge of a firearm at a person; 2) a peace or custodial officer’s use of force that resulted in death or great bodily injury; and 3) a sustained finding of Some Law Enforcement Drone dishonesty or sexual assault against an officer. These Videos May Qualify For The categories of records are among those that section CPRA’s Investigation Or Catchall 832.7(b) makes available for public inspection. A portion of the CPRA (Gov. Code section 7927.705), however, states that public agencies generally do not have to disclose records that are exempted or prohibited from disclosure under “state law.” Relying on that part of the CPRA, the Department withheld some records that were either exempted or prohibited from disclosure by Government Code section 11183, Penal Code sections 6126 and 6126.3, and/or Unemployment Insurance Code section 1094. In response, the Requestors filed a motion to get the withheld records. The Requestors lost in the trial court and appealed. The California Court of Appeal held that Penal Code section 832.7(b) supersedes conflicting state law disclosure exemptions. The Court reasoned that to
Exemptions.
The City of Chula Vista operated a pilot program using police drones to respond to 911 calls. The drones gave officers and commanders important preliminary information about what they would encounter on scene. Arturo Castañares, a journalist and private pilot, submitted a California Public Records Act (CPRA) request seeking information about the City’s drone program, including all drone video footage from all flights in a one-month period. The CPRA gives every person a presumptive right to inspect any public record, except those that the law expressly exempts from disclosure. Most relevant here is that the CPRA exempts from disclosure certain records
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of police investigations. (Gov. Code section 7923.600(a).) Also, the catchall CPRA exemption allows a government agency to withhold records if it can demonstrate that the public interest served by withholding specific records clearly outweighs the public interest served by disclosure. The City provided all the information requested, but withheld the video footage as exempt under the investigations and catchall exemptions. The City argued that every response to a 911 call requires the police to investigate the circumstances that lead to a call. Castañares sued to get the video footage. The trial court agreed with the City that the videos were records of investigations. The court also found that any benefit of disclosure was outweighed by the “unreasonable burden” placed on the City to redact the videos. The City submitted a declaration that it would take 1833.3 hours, or 229.2 workdays, to redact the footage alone, not including the additional legal review, research, and quality control necessary to evaluate privacy, safety, and legal concerns. Castañares appealed. The Court of Appeal overruled the trial court on both counts. The Court found that the trial court improperly treated the videos as categorically exempt investigation records. The Court also found that there was not enough information in the record on appeal to determine if the catchall exemption applied. The Court sent the case back to the trial court to conduct further proceedings. The Court did not foreclose the possibility, however, that the records could all be exempt, if the City further developed the evidentiary record. The Court “suggested” that the trial court require the City to separate the videos into three categories. The first category would be video footage that is part of an investigatory file. This footage would be exempt under
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Consortium
the investigations exemption. The second category would be videos that were not included in an investigation file but were instead used to investigate whether a law was violated. The Court noted that these records may still be exempt, as long as law enforcement was reasonably contemplated. The last category would consist of videos that did not fall into the other two categories. This footage would likely consist of instances where a drone was used to make a factual inquiry to determine what kind of assistance may be required, as opposed to investigating a suspected violation of law. According to the Court, video footage used for a factual inquiry, without a suspected violation of law, would not qualify under the investigation exemption, but might qualify under the catchall exemption. Castañares v. Superior Court (City of Chula Vista), 98 Cal. App.5th 295 (2023). NOTE: Law enforcement agencies should use Castañares as a prompt to prepare for similarly sweeping requests for videos and other types of audio/video records. If a video is not attached to an investigation file, but law enforcement is possible, then agencies should mark the video accordingly. Based on the decision, law enforcement agencies should expect courts to be more exacting in analyzing whether records qualify under the investigation exemption. LCW attorneys, including our Public Safety Practice Group, regularly advise and represent public agencies in connection with matters involving the California Public Records Act, including reviewing/updating policies and procedures, responding to requests, reviewing/redacting records, and defending CPRA litigation. For a more detailed discussion how law enforcement agencies can apply this case, please see J. Scott Tiedemann’s Special Bulletin here.
Seminars
Webinars
• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
February 2024
Congratulations to
Brett Overby
retirement
for her promotion to Senior Counsel!
County Retirement Association Properly Excluded Particular Compensation From Benefit Calculation. The Ventura County Employees’ Retirement Association (VCERA) is a public retirement system that provides retirement benefits to County employees. VCERA is governed by the County Employees Retirement Law of 1937 (CERL) (Gov. Code Section 31450 et seq.), and the California Public Employees’ Pension Reform Act of 2013 (PEPRA) (Gov. Code Section 7522 et seq.). A VCERA member may receive compensation for leave cash outs—accrued, but unused, hours of annual leave. A member’s terms of employment (e.g., a Memorandum of Agreement or the County Management Resolution) limit the number of hours a member may cash out in a calendar year. The VCERA adopted a resolution excluding compensation for accrued but unused annual leave hours exceeding a calendar year allowance from the calculation of retirement benefits, following a California Supreme Court decision in a similar case (Alameda County Deputy Sheriff ’s Assn. v. Alameda County Employees’ Retirement Assn, 9 Cal.5th 1032 (2020), hereafter Alameda). The California Superior Court granted VCERA’s request for a judicial declaration that its resolution was legal. Two County employee associations appealed this decision, arguing that the resolution was not mandated by Alameda or the relevant statutes. The California Court of Appeal affirmed the lower court's decision. The Court concluded that VCERA was required to comply with Alameda and the relevant statutes, which were designed to prevent pension spiking. The Court focused on Government Code Section 31461(b) and PEPRA’s goal of eliminating pension spiking. Thus, the Court interpreted these to limit compensation earnable to reflect pay for work ordinarily performed during the course of a year. Thus, VCERA was required to comply with Section 31461(b) and Alameda and exclude compensation for unused leave that exceeded an employee’s calendar year allowances. Ventura County Employees Retirement Ass’n v. Criminal Justice Attorneys Ass’n of Ventura County, 2024 Cal. App. Lexis 26. • www.lcwlegal.com •
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meyers-milias -brown act Union Missed Deadline To Request Factfinding. Operating Engineers Local Union No. 3 (OE3) and the City of Stockton were bargaining over a successor MOU. On July 7, the City and OE3 jointly asked the Public Employment Relations Board’s (PERB) State Mediation and Conciliation Service (SMCS) to assign a mediator, but neither party declared an impasse at that time. On July 31, the City sent OE3 a written declaration of impasse pursuant to the City’s local rules. On September 14—exactly 45 days after the City’s July 31 written declaration of impasse—OE3 initiated a factfinding request. On September 19, the City opposed the request, claiming that OE3 failed to file it in a timely manner. On September 20, PERB’s Office of the General Counsel issued an administrative determination approving OE3’s request. The City appealed. The Meyers-Milias-Brown Act (MMBA) provides two alternate deadlines for a union to request factfinding. The employee organization may request a factfinding panel not sooner than 30 days, but not more than 45
days, following the selection of a mediator pursuant to the parties’ mediation process. If not submitted to mediation, an employee organization may request a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of impasse. OE3 argued that it timely filed its request between 30- and 45-days following appointment or selection of a mediator. OE3 argued that: a) appointment of a pre-impasse mediator does not trigger a right to request factfinding; b) the PERB therefore must disregard the July 7 appointment date, which predated the parties’ impasse; and c) the PERB should find that the mediator was constructively reappointed or reselected when the City declared impasse on July 31. PERB held that there was not a sufficient basis for finding that July 31 qualified as a constructive reappointment date and rejected OE3’s interpretation. PERB adopted a more straightforward interpretation: the City’s July 31 impasse declaration created a 30-day filing window lasting through August 30. Because OE3 did not file its factfinding request within that window, OE3 waived its right to do so. City of Stockton v. OE, PERB Order Ad-507-M (2023).
LCW Partner Melanie L. Chaney Named 2024 Leaders of Influence: Minority Attorneys. 6
• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
February 2024
Daily Journal awards Partner Brian Walter as 2024 "Leading National Litigators"
governmental Claims Court Blocks CDCR’s Early Exit From Personal Injury Case Against Peace Officer. A public entity can be held liable for the conduct of its public employees if the public employee’s acts or omissions within the scope of employment proximately caused an injury to another. This principle is called respondeat superior and it is codified at Government Code Section 815.2 (a). The question of whether a public employee was acting within the scope of employment is ordinarily one of fact for the jury to determine. This case applies this principle to a peace officer. Michael Becker was a Peace Officer for the California Department of Corrections and Rehabilitation (CDCR). On his way to work very early one morning, Becker thought two individuals at a gas station were “looking suspicious”. Becker said some words were exchanged before the individuals drove away. Becker pursued the individuals on to the freeway, drove recklessly, and brandished a firearm at the two. Becker was driving his private car at the time.
An accident occurred at a freeway interchange. The car Becker was pursing caught on fire. One of the occupants of the car was able to self-extricate, however the other was incapacitated by catastrophic injuries and burns, and finally died over a year later. The survivor and the family of the deceased brought civil tort claims against Becker, and the CDCR. The trial court granted CDCR’s motion summary judgment, finding that Becker’s conduct did not occur within the scope of employment. The California Court of Appeal reversed. The Court found that the conflicts and inferences in the evidence prevented the CDCR’s summary judgment motion. For example, Becker’s primary duties at CDCR did not include typical law enforcement functions; he supervised prisoners who used knives for culinary duties. As another example, although Becker believed that his clothing made him recognizable as a CDCR Officer, the facts were disputed as to whether the two individuals knew Becker was wearing a uniform before the accident. The Court denied CDCR’s motion for summary judgment because of these and other conflicting facts. Adams v. Department of Corrections and Rehabilitation, 2024 Cal.App.Lexis 11.
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Did You Know?
Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in public safety. • PG&E agreed to $45 million settlement related to California’s secondlargest wildfire, which took place on July 13, 2021. • Contra Costa County Fire Protection District received funding to complete a “shaded fuel break” project across southern Lafayette and Walnut Creek. Estimated to be finished by 2025, this project will involve a carefully planned thinning of dense tree cover and removal of underlying bush to help control the spread of wildfires. • AB 2282 expands the definition of hate symbols to include any symbols or marks with “the intent to terrorize another person.”
new to the Firm! Lucy Goodnough is an Associate in the San Francisco office where she practices in labor and employment law matters.
Whitney Lauren Tolar is an Associate in the San Francisco office, specializing in labor and employment law matters.
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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
February 2024
Consortium Call Of The Month For more information on our consortiums, visit our website.
Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns to disability accommodations, labor relations issues and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.
Answer:
Question: Can a Fire Chief review firefighter candidates’ background reports and psychological evaluations?
Yes, but there also downsides to including the Chief so early in the recruitment process. Although the Chief is authorized to access the information, the information may disclose a candidate’s disability. Decisionmakers run the risk of a disability discrimination if they consider evidence of a disability in hiring. A best practice is to first allow human resources personnel to complete the disability interactive process as required by law to determine if the candidate can perform essential job functions with or without a reasonable accommodation. The Chief can get involved in the final stages of the hiring process and select among qualified candidates.
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On The Blog Navigating the Nuances of Self-Represented Plaintiffs By: Jackie Lee In the intricate landscape of legal disputes, pro se/pro per plaintiffs—individuals representing themselves without legal counsel—pose unique challenges for defendants. As a preliminary note, self-represented plaintiffs are referred to as “pro se” plaintiffs in federal court and “pro per” plaintiffs in state court. During the course of this post, the term “pro se plaintiffs” will be used to reference self-represented plaintiffs. Reports have shown that in California state courts, there has been a rise in the number of pro se litigants. In 2004, over 4.3 million users of the California court system were self-represented. While many of those cases were family law or unlawful detainer cases, 16% of general civil cases were filed by pro se plaintiffs. In federal courts, data shows that between 1999 and 2018, over 1,517,000 federal district court cases, or 28 percent of all cases filed, involved at least one pro se party. Amongst these cases, 91.2 percent of all pro se litigation involve pro se plaintiffs which amounts to 25.4 percent of total filings between 1999 and 2018. Moreover, 20 percent of employment civil rights cases involved at least one pro se party. Generally, the federal courts have seen a consistent rate of pro se cases, between 1999 and 2019. As seen from the statistics, pro se plaintiffs, while not as prevalent in the employment space, are still more prevalent than one would expect. Accordingly, understanding the unique dynamics of such cases and being equipped with strategic approaches are vital. It Is a Mistake to Discount the Pro Se Plaintiff It may be easy to treat cases with pro se plaintiffs dismissively because the common assumption is they lack legal skills and are easier to litigate against. This is a misguided assumption. Pro se plaintiffs provide an interesting dynamic in that what they lack in legal knowledge is juxtaposed by increased leniency from judges in both federal and state courts. Despite the general duty of California courts to treat a person representing himself the same as though he were represented by counsel (Monastero v. Los Angeles Transit Company (1955) 131 Cal.App.2d 156, 160-61), judicial preference in pro se cases can be to resolve matters based on merit rather than dismiss due to procedural defaults. This typically manifests in California courts, among other acts of leniency, liberally construing documents filed by pro se plaintiffs, liberally allowing amendments to pleadings, and explaining different procedures to them during the course of litigation. Federal courts take a similar approach in how they treat pro se plaintiffs. (See Haines v. Kerner (1972) 404 U.S. 519, 521 (per curium) (pro se complaints are held to “less stringent” standards than those drafted by attorneys).) Therefore, while filing motions to dismiss in federal court and demurrers in state court is a great way to attack the pleadings of pro se plaintiffs, courts may be inclined to deny such motions much more readily than if the pleadings had been prepared and filed by experienced counsel.
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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
February 2024
Moreover, many pro se litigants may be much more knowledgeable than anticipated. Pro se plaintiffs may have legal backgrounds or even have assistance behind the scenes from family and friends who have legal backgrounds. Additionally, cases with pro se plaintiffs often require more time and money than cases in which plaintiffs are represented by counsel because a large part of the battle is deciphering the various pleadings and motions that a pro se plaintiff may file. Pro se plaintiffs’ lack of knowledge regarding procedural elements may also cause hiccups along the road, which leads to more time and money spent to figure out how to address these hiccups. Thus, it is important to treat pro se plaintiffs very much as seriously as plaintiffs represented by counsel. Provide Help to the Court via Briefing As difficult as it may be for defendants to ascertain pro se plaintiffs’ arguments, it is equally as difficult for the courts. Therefore, defendants should seek to provide courts with motions and briefing that clearly outline the facts, provide robust analysis of the legal issues, and even anticipate or interpret plaintiffs’ arguments. By providing the courts with briefing of this type, defendants provide courts with a good outline of the law that relieves courts from having to do their own research. Moreover, briefing that is complete, clear, and concise has the added benefit of providing courts with more incentive to use that briefing as the basis for their orders. In the context of litigating against pro se plaintiffs, briefing is more important than ever. Approach Informal Settlement Talks Cautiously Early resolution is appealing, especially if it means getting rid of a case with a pro se plaintiff that may take much more time and money than a case in which counsel represents the plaintiff. While some pro se plaintiffs may be open to early resolution, it is important to understand the risks that come with informally negotiating settlement with a pro se plaintiff before jumping in headfirst. Pro se plaintiffs are not bound by the professional code of conduct that binds attorneys. Therefore, for example, while attorneys are bound by the professional codes of conduct that prohibit misrepresentations, pro se plaintiffs may make misrepresentations during the course of settlement talks to your detriment. Pro se plaintiffs may also agree to settlement terms and then back track afterwards to get better terms. If a settlement is reached, it is important to take care to craft a thorough settlement agreement to avoid any attempts of pro se plaintiffs reneging as to agreed terms. It may be worthwhile to consider having a witness for the execution of the settlement agreement and any other precautions to document the events surrounding the execution of the settlement agreement. Use Mediation and Other Alternative Dispute Resolution Solutions While defendants should cautiously approach informal settlement talks, mediation, settlement conferences, and other alternative dispute resolution solutions may lead to a positive result. When a neutral party is involved in facilitating settlement discussions, defendants may be able to achieve much more than if they were themselves to approach pro se plaintiffs informally. Moreover, the neutral party may help provide more perspective to pro se plaintiffs and manage those plaintiffs’ expectations. In conclusion, the landscape of pro se litigation requires a serious and strategic mindset. Defendants must acknowledge the challenges posed by pro se plaintiffs and adopt tailored strategies to navigate these legal complexities effectively. By doing so, defendants not only safeguard their interests but also contribute to the efficient and equitable resolution of legal disputes.
View the full blog here.
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Liebert Cassidy Whitmore