PERB Orders Reinstatement of Three California City Police Employees

KIMBERLY RILEY
Partner
ANDREW M. DAWSON
Partner
Dawson & Riley, LLP

Once again, California City’s continued mismanagement has been called into question. This time, the Public Employment Relations Board (PERB) ordered the reinstatement of three police employees — a police detective, police officer and reserve police officer/jailer — based on the City’s violation of the Meyers-Milias-Brown Act (MMBA). Dawson & Riley, LLP, legal counsel for the California City Police Officers’ Association (CCPOA), filed an unfair practice charge against the City for two unilateral changes in the disciplinary proceedings of the three police employees.

In October 2020, the City terminated the three employees relating to a use-of-force incident involving a subject who has a history of contacts with the Department. The details of the politically motivated terminations were discussed in a prior PORAC LE News article. One issue that arose from the termination was the Department’s failure to follow its own policy in its mandatory review process of the investigation materials. Department policy required the division commander to be a part of the review process; however, that was not followed by the new police chief and city manager. Despite this violation of Department policy being brought to the city manager’s attention prior to the Skelly hearing, along with other issues in the investigation, the city manager failed to address the violations and upheld the terminations.

The terminations were appealed to the City Council, pursuant to the City’s personnel rules. Given the conflicts of interest with the City Council, the appellants’ attorney requested that the appeals be forwarded to independent hearing officers. The law firm that represents the City was serving as both the advocate for the City — supporting the termination on behalf of the city manager — and the advisor to the City Council. The appellants’ counsel objected to the dual representation and clear conflict of interest, but the objections were ignored. The City Council agreed to submit the appeals to a hearing officer, but when it came time to obtain a list of hearing officers, the City would only obtain one list and unilaterally sought to consolidate the appeals before one independent hearing officer. The appellants’ attorney objected to the unilateral consolidation and sought further direction from the City Council regarding its prior referral of the appeals to independent hearing officers.

Only after multiple objections and on the rehearing of this issue before the City Council did the City’s retained law firm finally recuse itself from advising the City Council. The appellants’ counsel filed objections to the City Council regarding the City’s unilateral consolidation of the appeal hearings as a violation of the MMBA due to the City’s failure to meet and confer prior to its unilateral change, in addition to other legal objections. The City Council overruled the objections and provided direction for the selection of one hearing officer for all three appeals.

Based on the City Council’s refusal to obtain three different strike lists of hearing officers for each pending appeal and its previous failure to follow Department policy in its mandatory review of the investigation materials, the appellants’ attorney requested funding from PORAC’s Legal Defense Fund to file an unfair practice charge on behalf of the CCPOA. LDF agreed to fund the unfair practice charge, given the unilateral changes by the City in these disciplinary hearings.

PERB issued a complaint against the City for both unilateral changes outlined in the unfair practice charge filed by the appellants’ attorney. Upon issuance of the complaint, the City was required to file an answer to the complaint within 20 days. The City’s answer was filed 15 days late. Based on the untimely filing by the City and its failure to request leave to file a late answer, the appellants’ counsel filed a motion to dismiss and requested that a default judgment be issued on behalf of the CCPOA. PERB Regulation 32644, Subdivision (c), provides: “If the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing.” A “respondent’s failure to answer a PERB complaint effectively results in an admission of the matters alleged therein, as well as those alleged in the charge,” and precludes the assertion of any affirmative defenses (Regents of the University of California [2018] PERB Decision No. 2601-H, p. 14).

In its opposition to the motion to dismiss, the City’s attorney made numerous baseless excuses to justify its late filing. First, it alleged that the city manager was unfamiliar with the PERB process, and her unfamiliarity was impliedly to blame for the late filing. Furthermore, the attorney claimed there was a delay in communication with the City on whether their law firm needed to file an answer in this matter, and that it took time to clarify this issue. The City’s attorney also claimed there were logistical delays relating to accessing PERB’s e-portal to determine the case status because there was a delay in filing the paperwork to assign their firm to the matter. Lastly, the City’s attorney during this time also had a prescheduled vacation and went on vacation prior to finding out whether an answer had been filed.

A pre-hearing conference was held by the presiding administrative law judge (ALJ) regarding the motion to dismiss. The ALJ determined that “the excuse given for the lateness of the filing, whether attributed to [the City Manager], [the City’s attorney], or both does not constitute good cause to excuse the late filing.” There was no conscientious effort by the City to comply with the filing deadline at all. Based on the City’s failure to establish good cause to file a late answer, its failure resulted in the “admission of the matters alleged in the complaint and the charge.” Thus, the City was found to have violated MMBA sections 3503, 3505, 3506 and 3506.5, in addition to specific PERB regulations.

Based on these violations, the City was ordered to cease and desist from implementing unilateral changes to the disciplinary process. It was also ordered to rescind the terminations and reinstate all three employees. All three employees were ordered to be reimbursed for all loss of salary and benefits since the date of termination, plus 7% interest. The City was also required to provide notice, via email and physical postings, to all bargaining unit employees regarding the decision and its violations of the MMBA.