On July 15, 2019, the Public Employment Relations Board (PERB) issued a decision in the case, Association of Orange County Deputy Sheriffs v. County of Orange, PERB Decision No. 2675-M. At issue in the case was whether PERB has jurisdiction to hear claims brought by employee organizations that represent peace officers as that term is defined in Penal Code 830.1, and whether the County was obligated to bargain changes to an ordinance creating an Office of Independent Review (OIR) that advised the Sheriff-Coroner on certain in-custody incidents and complaints against law enforcement personnel. The Board held for the Association on the jurisdictional issue and for the County on the merits. This decision is very significant as it provides a very clear holding from PERB that it believes that employee organizations (labor associations and unions) that represent only sworn peace officers (officers and sheriffs) can directly file unfair practice charges with PERB and that PERB has jurisdiction to adjudicate those charges.
The Jurisdictional Issue
During the relevant time period, the Association of Orange County Deputy Sheriffs (Association) was a bargaining unit composed of 1693 peace officers, as that term is defined in Penal Code 830.1, and 115 non-peace officers. (Penal Code 830.1 defines persons who are peace officers to include deputy sheriffs and police officers.)
In 2008, the County passed an ordinance creating an OIR to advise the Sheriff-Coroner regarding in-custody incidents involving death or serious injury and complaints against law enforcement personnel. In 2015, the County notified the Association of its intent to change its OIR ordinance to extend OIR authority to cover the District Attorney’s Office, among other changes. The Association argued that the decision to change the OIR ordinance and the effects of the decision were matters within the scope of representation. In December 2015, the County implemented changes to the OIR without meeting and conferring with the Association. The Association then filed an Unfair Practice Charge (UPC) in June 2016.
As part of its response to the UPC, the County moved to dismiss, arguing PERB lacked jurisdiction to hear claims brought by 830.1 peace officers. According to the County, section 3511 of the Meyers Milias Brown Act (MMBA) bars claims by persons who are peace officers as defined in section 830.1 of the Penal Code, as well as claims that impact Penal Code 830.1 peace officers. The ALJ disagreed, relying on a 2015 PERB Decision that found the Board had jurisdiction over charges brought by employee organizations representing bargaining units that include, in whole or in part, persons who are peace officers. Click here to read about that case. The County then excepted to the ALJ’s ruling on jurisdiction and the matter was heard before the PERB Board.
After a lengthy discussion of statutory history and statutory framework, the Board affirmed the ALJ’s decision and rejected the County’s arguments, holding that PERB has jurisdiction over claims brought by employee organizations that represent or seek to represent bargaining units composed partially or entirely of Penal Code 830.1 peace officers. In other words, while section 3511 of the MMBA prohibits natural persons who are peace officers pursuant to Penal Code 830.1 from filing claims with PERB, their Associations may do so.
The Obligation to Bargain Issue
The Board found for the County on whether the County had an obligation to bargain changes to its OIR ordinance that expanded the jurisdiction of the OIR, authorized the OIR to work with departments beyond the Sheriff-Coroner, and authorized the OIR to provide legal advice on non-law enforcement employee misconduct. According to the Association, the changes to the OIR were within the scope of representation because legal advice provided by the OIR attorneys could influence disciplinary decisions, which, according to the Association, would affect the discipline process and disciplinary procedure. Disciplinary procedure is a mandatory subject of bargaining under the MMBA. The Board disagreed, finding the changes to the OIR ordinance only concerned management’s direction to its legal counsel for the performance of legal services, which is outside the scope of representation and the MMBA’s meet-and-confer requirement. PERB drew a distinction between citizen review board procedures and advice of legal counsel, finding that the directions an employer gives its legal counsel about how to provide it with legal advice is so attenuated from the employment relationship that it is outside the scope of representation. The Board concluded, “[u]ltimately, the OIR ordinance functions much like a contract for legal services and concerns only how OIR attorneys and staff will provide the County with legal advice; it does not change or have effects on the disciplinary procedure.”
What is Next
This decision is the first time that PERB has affirmatively held that it has jurisdiction to hear MMBA unfair practice charges brought by employee organizations that solely represent sworn peace officers as that term is defined at Penal Code section 830.1. Whereas prior to County of Orange, employee organizations that solely represented peace officers as that term is defined in Penal Code section 830.1 were arguably limited to filing claims for alleged MMBA unfair practice charges in superior court, the County of Orange decision makes clear that those organizations may file such claims directly with PERB. Unless County of Orange is successfully challenged in appellate court, agencies with police or sheriff departments will likely see an increase in PERB claims brought by police officer or sheriff employee organizations.
The Association of Orange County Deputy Sheriffs v. County of Orange (2019) PERB Decision No. 2675-M, may be found here.