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LDF Provides Assistance Seeking To Overturn An Erroneous Court Order

Posted on Wednesday, November 01, 2000 at 12:00PM

Redondo Beach management were involved in a series of high-profile disputes with various employee groups. In one incident, three city department heads were caught in an audio/visual room surreptitiously watching a meeting of the Redondo Beach POA (RBPOA). Thereafter, the city terminated the city manager, Will Kirchhoff. Kirchhoff not satisfied with his existing severance contract, sued the city and the RBPOA. In his claim against RBPOA, he alleged that the city and RBPOA conspired to deprive him of his civil rights because he claimed (wrongly) that he was terminated as a result of an investigation into police department overtime.

RBPOA vehemently denied the contentions. Nonetheless, it was forced to defend the lawsuit. Because RBPOA did not have any applicable insurance, it hired Silver, Hadden & Silver.

An interesting issue arose during the case’s discovery phase. Kirchhoff’s attorneys served a set of questions and also served a request for documents. The responses to such discovery requests must be certified to be accurate. The request was made to RBPOA but sought information and documents from the individual members. The discovery laws require that a party responding to discovery must also inquire of its agents and employees. Generally, there is no need to inquire of those people who are not agents or employees who would be equally accessible to the asking party.

RBPOA, for the same reasons as other peace officer associations, was formed as a mutual benefit corporation for the purpose of securing advantageous employment benefits and working conditions for its sworn employees. RBPOA objected to the requests, in part, because, as a corporation, it acts only through its Board of Directors and its one part-time employee. As a result, the members of RBPOA, who were not named as individual parties to the action, were not employees or agents of the corporation unless they were fulfilling a specific request of the Board of Directors.

The discovery requests were very broad and asked for information that easily could be protected by the individual members’ rights, including their First Amendment rights of free speech and freedom of association. RBPOA’s concern about responding to the discovery requests included (1) how could RBPOA force its members to respond? (2) how could RBPOA be sanctioned for failing to ensure that its members responded? (3) how would RBPOA be in a position to ensure that the responses provided by the members were accurate? (4) how would the individual members be in a position to raise their own legal objections or privileges to any of the requests, including objections which could implicate the individual members rights of privacy and/or First Amendment rights? and (5) why would RBPOA be obligated to conduct an investigation for Kirchhoff when his attorneys could conduct their own investigation by asking for the same information from the non-employee members?

As a result of RBPOA’s concerns, it refused to respond on behalf of its members. Kirchhoff brought a motion in court to compel a response. The Superior Court judge, in a contentious hearing, issued an ambiguous ruling and said that RBPOA had an obligation to inquire and provide the responses (The order was uncertain because it was unclear if the judge ordered RBPOA merely to inquire of its members, or whether RBPOA also had to ensure that it provided the requested information even if the members choose not to respond).

Recognizing the importance of the issues to all police officer associations and the need to protect the individual members’ rights, the LDF trustees granted affirmative relief coverage to appeal the judge’s ruling. A “Petition for Writ of Mandate, Prohibition, Certiorari, or Other Appropriate Relief” was filed with the Court of Appeal. Such a petition during the pendency of a case constitutes a request for extraordinary relief and it is not mandatory for the Court of Appeal to agree to hear these petitions.

In the petition RBPOA raised its concerns and also argued that its members are no different than the members of a credit union in that the purpose is to obtain advantageous benefits for its members. Thus, while the members vote for the board of directors, if a credit union were sued for allegedly violating someone’s civil rights, it is unfathomable that the credit union would be required to contact each of its non-employee, non-agent, members to obtain their discovery responses. Additionally, all such members would be equally accessible to the party requesting the information. Identical issues would exist for the shareholders of a corporation when the corporation is the recipient of discovery. As a result, RBPOA argued that the Court of Appeal should rule on the propriety of the judge’s order.

Unfortunately, the Court of Appeal declined to hear the petition, holding that the petition was “denied for failure to demonstrate entitlement to extraordinary relief”. Thus, although RBPOA and LDF’s board of trustees believed that the petition has significant merit and that the Superior Court’s decision was incorrect, the Court of Appeal declined to hear this discovery petition because the issue could again be raised at the time of an appeal after a judgment. The Court of Appeal apparently was unpersuaded by our concerns that by not ruling RBPOA would be forced to respond to the inappropriate discovery.

Because of the ruling, RBPOA prepared responses to the discovery requests. Fortuitously, however, RBPOA did not have to further pursue its objections or the appeal because shortly after the Court of Appeal ruling the case was resolved.

As an epilogue, associations should strongly consider obtaining separate insurance to protect themselves from the defense costs associated with allegations of wrongdoing as well as to indemnify associations for any award that may be issued. Although the LDF trustees were able to assist RBPOA on this issue, RBPOA nonetheless incurred substantial attorneys fees to defend itself against the allegations.

Additionally, RBPOA kept good minutes of their board meetings which would have been helpful if the case had proceeded to trial. As is common in employee associations, there often are changes in leadership which create difficulty in remembering what official actions occurred. Associations should strive to keep accurate and complete records to assist when, and if, a claim of wrongdoing is made.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.