On April 26, 2021, the First District Court of Appeal published its decision in Oakland Police Officers Association v. City of Oakland (2021) — Cal.App.5th — (“Oakland POA”). The case provides critical guidance regarding what information a law enforcement agency must provide to a peace officer before conducting a second or subsequent interrogation
Issues Public Employers Face During Mass Protest – Question and Answer
Our nation continues to react to the death of George Floyd, and this reaction includes the thousands who have participated in mass protests across the country. Many people feel compelled to speak openly and passionately about an issue of national importance. Public employees likely wish to express their views as well, and this includes not
The First Amendment In Employment And Education – Six Issues for 2013
The U.S. Supreme Court’s docket is light on First Amendment cases this term. Nonetheless, the year 2013 may well bring important developments in a number of areas of free speech law in employment and education. The following are six primary areas worth watching in the coming year.
1. Is a College or University Campus a
Court Of Appeal Holds That Assistant Sheriff’s Waiver Of Right To Administrative Appeal Violated The Public Safety Officers Procedural Bill Of Rights Act
This guest post was authored by Jennifer Rosner
On November 8, 2011, the Fourth District Court of Appeal ruled that the former Assistant Sheriff of Orange County was entitled to an administrative appeal from his discharge despite twice signing a waiver acknowledging that he was an at-will employee with no right to appeal a discharge. The Court of Appeal held that the waiver that the Assistant Sheriff signed was ineffective to waive his rights under the Public Safety Officers Procedural Bill of Rights Act (“the POBR”) and California whistleblower statute.
George Jaramillo was appointed to Assistant Sheriff in 1998 after managing Michael Carona’s campaign for Orange County Sheriff. On December 31, 1998, just before he was appointed Assistant Sheriff, Jaramillo signed a formal “waiver of rights.” It was a three page document that made no direct reference to the POBR. On February 28, 2000, Jaramillo signed another one page waiver that made no direct reference to the POBR. The 1998 and 2000 waivers stated that Jaramillo served “solely” at the “pleasure and discretion” of the Sheriff and could be terminated “at any time without notice, cause or rights of appeal.” The documents also outlined a severance package that Jaramillo would receive if he was terminated.
Over the next few years, Carona and Jaramillo began to clash over a series of issues, leading Carona to ask for Jaramillo’s resignation in 2004. When Jaramillo refused to resign, Carona fired him. Jaramillo insisted that he had a right to “some sort of hearing” under the POBR, but his request was denied. Jaramillo filed a lawsuit against the County in 2005, alleging that his firing violated 1) the POBR; 2) 14th Amendment due process; and 3) Labor Code section 1102.5 (based on the idea that Jaramillo had been fired for whistleblowing on Carona’s activities).
In March 2006, almost two years after he was fired, the Orange County grand jury handed down a 13-count indictment, charging Jaramillo with various crimes, including perjury and misuse of public funds. Jaramillo eventually pled no contest to these charges on January 29, 2007. Meanwhile, Jaramillo’s lawsuit was still pending. The case was tried in Spring 2009. The trial court found that Jaramillo’s firing and the subsequent refusal of the County to afford him an administrative hearing violated his rights under the POBR.
On appeal, the Court of Appeals affirmed the trial court’s judgment. The Court found that the waivers that Jaramillo had signed in 1998 and 2000 did not effectively waive his rights under the POBR.
In reaching its conclusion, the Court examined a previous California Supreme Court decision in County of Riverside v. Superior Court (2002) 27 Cal.4th 793, which upheld a limited waiver of rights under the POBR, but indicated that such a waiver would have to be narrow and “serve” the public purpose of the POBR, not “undermine” it. (Id. at 805-806.) The Court of Appeals noted three key differences between Jaramillo’s case and the County of Riverside case: 1) Jaramillo’s waivers of his the POBR rights were blanket waivers, something which the Court believed had been rejected in County of Riverside; 2) Jaramillo did not have “full knowledge” at the time he signed the waiver, i.e., he had no reason to suspect he was in Carona’s ill graces when he signed the 1998 and 2000 waivers; and 3) the waivers would clearly undermine the public purpose of the POBR and not serve it.
New Political Causes, OCCUPY Protests, And Public Employers
The rising intensity of political debate in recent years and this fall’s wave of OCCUPY protests nationwide have created unique challenges for public sector employers. Employers are used to responding to mainstream political disputes in the workplace with the time-tested standby: “Republican or Democrat, it makes no difference, and please just go back to work.” But now public employers have to contend with a different political landscape, a different level of emotional involvement by employees, and entirely new political causes. One such cause is the Tea Party movement, one of whose central tenets is the need for a sharp decrease in government spending and in the overall role of public agencies themselves. Second, on a different axis, the new OCCUPY movement attacks the private sector’s supposed excessive role in government. This is at least the purpose as articulated by some of the movement’s endorsers, such as film maker Michael Moore, former New York Times writer Christopher Hedges (who quotes literary figures like Albert Camus and W.B. Yeats in support of his economic arguments), and even Harvard law professor Lawrence Lessig (in his new book “Republic, Lost”). Significantly, although the OCCUPY target for reform is the private sector, it is clear the public sector has had to bear the brunt of its physical effects. The tents and protests are typically on public property, with City police forces having to dedicate substantial resources to watching out for and responding to any disturbances, and in a few cases to taking even more drastic action.
As to employment law as well, all of this corresponds to increased pressure on public employers to address issues raised by increasing and more intense political activities by employees, both at the workplace and outside on personal time, sometimes through organized protest activities.
How is a public employer to handle increased employee work time spent discussing or even arguing about political issues?
How is a public employer to deal with employees who engage in “cubicle wars” by posting dueling ideological cartoons and slogans at their workplaces?
How does a City employer respond, if at all, to employees who actively participate in organized protests on public property and identify themselves to the media as City employees – while at the same time the City’s own police force is struggling to maintain order in the protests?
Finally, how does a public sector employer respond to the contentions of a discharged young manager who claims that the employer’s reason for the firing was a pretext, and that the real reason was the employee’s actions in advancing ideological goals adverse to the agency?
The answers to many of these questions will come from California statutory laws. Here are some of them. As can be seen, most reflect the need to create viewpoint-neutral rules that address the scenarios in advance.
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