Review Commissions Are Not Exempted From Collective Bargaining

TAYLOR DAVIES-MAHAFFEY
Associate Attorney
Mastagni Holstedt, APC

On February 28, 2023, the Public Employment Relations Board (PERB) issued a precedential decision confirming that employee discipline and investigation procedures are within the scope of representation. The decision, in consolidated cases Sonoma County Deputy Sheriffs’ Association v. County of Sonoma and Sonoma County Law Enforcement Association v. County of Sonoma, Decision No. 2772a-M, affirmed PERB’s earlier decision in the same case finding that a Sonoma County ballot measure expanding the powers of the Independent Office of Law Enforcement Review and Outreach (IOLERO) without meeting and conferring with the Sonoma County Law Enforcement Association and Sonoma County Deputy Sheriffs’ Association (collectively referred to as “associations” hereafter) was a unilateral change, in violation of the Meyers-Milias-Brown Act (MMBA).

On August 6, 2020, the Sonoma County’s Board of Supervisors voted to submit a proposed ballot measure to the county’s residents for consideration during the statewide November 2020 general election. That ballot measure, known as Measure P, significantly expanded the oversight authority of IOLERO over the Sheriff’s Office. Specifically, the proposed Measure P afforded IOLERO the authority to: (a) have direct access to association member personnel file information; (b) publicly disclose association member personnel file information; (c) conduct independent investigations of alleged misconduct, make independent findings and recommend discipline; (d) personally attend administrative interrogations of association members under investigation for alleged misconduct; and (e) independently subpoena records and testimony, among other expanded powers.

Pursuant to the MMBA, the County was required to provide the associations advance written notice and the opportunity to meet and confer prior to placing the measure on the ballot. The County did neither, claiming that doing so “was not in the community’s interest.” The associations filed separate unfair labor practice charges with PERB, alleging that specific provisions of Measure P affected numerous matters within the “scope of representation” and that the County’s vote to place Measure P on the ballot without first meeting and conferring violated the MMBA. Kathleen N. Mastagni Storm and Taylor Davies-Mahaffey of Mastagni Holstedt represented the Sonoma County Law Enforcement Association in this matter; Rains Lucia Stern St. Phalle & Silver represented the Sonoma County Deputy Sheriffs’ Association. While administrative proceedings before PERB were ongoing, the voters approved the measure.

Thereafter, PERB issued a unanimous decision, finding that the County violated its obligations under the MMBA by failing to meet and confer prior to placing Measure P on the ballot. Applying the test as articulated by the California Supreme Court in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259 (“Richmond Firefighters”) PERB found generally that “Measure P’s amendments relat[ing] to investigation and discipline of employees were subject to decision bargaining” and “other amendments were subject to effects bargaining,” noting that investigation and disciplinary procedures “lie at the core of traditional labor relations” and “are particularly amenable to collective bargaining.” Accordingly, PERB found that the County’s failure to provide the associations either advance notice of, or the opportunity to meet and confer over, these amendments prior to their placement on the ballot violated the MMBA. To remedy the County’s conduct, PERB declared several provisions of Measure P “void and unenforceable” as to the associations’ members, among other remedies.

Thereafter, the County filed a petition for a writ of extraordinary relief with the First District Court of Appeal. The Court of Appeal affirmed the PERB’s conclusion that the County violated the MMBA by failing to meet and confer over the effects of specific Measure P provisions on association-represented employees’ terms and conditions of employment (County of Sonoma v. Public Employment Relations Board [2022] 80 Cal.App.5th 167, 186-189). The court also affirmed PERB’s jurisdiction over unfair practice charges filed by employee organizations representing “peace officers,” as defined in Penal Code Section 830.1.

However, the court annulled PERB’s conclusion that the County violated the MMBA by failing to afford the associations proper notice and failing to meet and confer upon their request over the decision to place certain Measure P provisions on the ballot (Id. at p. 192). Specifically, the court held that PERB erred by failing to apply the test from Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 to determine whether the provisions had “a significant and adverse effect on the wages, hours, or working conditions” of association-represented employees (Sonoma, supra, 80 Cal.App.5th at p. 174). The court remanded the case back to PERB to determine if the Measure P amendments significantly and adversely affected the associations’ members’ working conditions (Id. at pp. 191–193).

On remand, PERB found that the Measure P provisions significantly and adversely affected members’ working conditions by “creating a second, independent investigatory path.” PERB noted that while IOLERO’s independent investigation “may or may not ultimately lead to an officer’s discipline,” it creates a potential for discipline that did not previously exist. By creating the potential for investigation by a second entity, Measure P inevitably increases officers’ potential for discipline. Furthermore, even if no discipline is ultimately issued, IOLERO’s investigation will generate a report which could be included in the officer’s personnel file. PERB found the addition of such a report to an officer’s personnel file may have a significant and adverse effect on their working conditions. PERB also found that a second investigation could adversely affect members’ working conditions because pending investigations are likely to affect employees’ opportunities for promotions or special assignments.

The associations’ victory has statewide implications and serves as an important clarification that employers cannot unilaterally create independent police review commissions without input from law enforcement unions. The policies and procedures of such commissions may fall within the scope of bargaining, even if the commission itself does not have the authority to discipline officers. The associations also wish to thank PORAC and PORAC LDF, which have provided their support to help them win this battle.

 About the Author

Taylor Davies-Mahaffey is an associate attorney in the Labor and Employment Department of Mastagni Holstedt, APC, where she represents public-sector employees in complex civil, class-action and collective-action litigation matters in labor and employment law. She specializes in wage and hour litigation, including cases arising out of the Fair Labor Standards Act and the California Labor Code. Taylor is also a PORAC Legal Defense Fund panel attorney and represents public-sector employees in administrative hearings, disciplinary actions, internal affairs investigations, critical incidents, labor arbitration hearings and criminal defense-related matters.