Lincoln Police Officers’ Association Vindicated in Unfair Practice Charge Against Vizzusi and the City of Lincoln

Posted on Sunday, August 01, 2010 at 12:00PM
Posted by David E. Mastagni Kathleen N. M. Storm

The Lincoln Police Officers’ Association (LPOA) vindicated important associational rights to control the content of their postings on the POA bulletin board by initiating an unfair labor practice charge and grievance against former-Chief Vizzusi and the City of Lincoln. Based on the LPOA’s charge, the Public Employment Relations Board (PERB) issued a complaint fi nding unfair labor practices. The PERB facilitated a mediated settlement in which the LPOA obtained the right to install a lockable glass case enclosing the LPOA bulletin board within the Police Department, wherein only the city manager and the executive board of the LPOA would maintain a key to the glass case. The LPOA and LPOA President Brett Schneider were represented throughout this process by David E. Mastagni and Kathleen N. M. Storm from the law fi rm of Mastagni, Holstedt, Amick, Miller & Johnsen.

Lincoln Police Chief Unilaterally Removed Documents from the Bulletin Board

The LPOA had long maintained an association-designated bulletin board at the Lincoln Police Substation as a means for the LPOA executive board to communicate association-related news and information to its members. The MMBA provides for use of offi cial bulletin boards subject to reasonable regulations. (Gov’t Code§ 3507(a)(7).) The LPOA’s MOU also provides a contractual right to maintain the bulletin board.

Around July 31, 2009, the LPOA posted a non-confi dential e-mail to then-Chief Brian Vizzusi, confi rming a list of agenda items for the next meeting between the LPOA and City representatives. On or about August 5, 2009, Lieutenant David Ibarra, acting under Vizzusi’s order, unilaterally removed the e-mail from the bulletin board. When the LPOA protested, Vizzusi allegedly stated that the Lincoln Police Department was “his department” and that he could, and would, remove anything from the bulletin board as he felt necessary.

In August 2009, the LPOA posted a copy of a labor agreement involving concessions between the Lincoln Professional Fire Suppression offi cers and the City in response to members’ requests for the information. On or about August 31, 2009, Lieutenant Ibarra directed an LPOA executive board member to remove both the side letter and a sign atop the bulletin board stating that only LPOA members could add or remove materials from the bulletin board. In September 2009, an LPOA member posted two documents upon the LPOA bulletin board. One document was a copy of an article published in the Placer Herald newspaper describing cash-saving efforts by the City of Rocklin, including the Rocklin City Council’s decision that Rocklin’s Police and Fire Department dispatch units would merge with the City of Lincoln’s Police and Fire Department dispatch units. The other document was a copy of an article published by the Peace Officers Research Association of California (PORAC) describing a Los Angeles case wherein the Superior Court dismissed a discipline case against a police officer.

Both documents were last seen prominently displayed on October 1, 2009. By the morning of October 2, 2009, the documents were no longer posted in a visible position on the LPOA bulletin board. In its PERB charge, the LPOA alleged that Vizzusi — at the station on the evening of October 1, 2009 — purposefully pinned the two documents underneath other documents posted on the bulletin board, effectively hiding them from view.

The LPOA Files a Grievance and Unfair Practice: Charge On September 2, 2009, LPOA President Brett Schneider filed a grievance against the City of Lincoln and Vizzusi, alleging that Vizzusi violated the MOU by interfering with the LPOA’s right to use the association-designated bulletin board. On September 16, 2009, Vizzusi amazingly issued a memorandum to all Police Department personnel unapologetically admitting that he had ordered the documents to be removed and explaining his purported justifications for his actions.

On or about October 2, 2009, the LPOA filed the unfair practice charge with the PERB, alleging that the City of Lincoln, through the acts of Brian Vizzusi, committed unfair labor practices in violation of the Meyers-Milias Brown Act (Gov. Code § 3500, et seq.) and PERB regulations for interfering with and restraining public employees from the exercise of protected association rights, including using the bulletin board, denying the association the opportunity to dutifully represent its members and related allegations. The charge also alleged that Vizzusi threatened to eliminate the Police Department’s equipment and training fund if the LPOA continued to pursue or file grievances.

On February 23, 2010, the PERB issued a complaint against the City of Lincoln, charging that the City of Lincoln failed and refused to meet and confer in good faith prior to changing the Department’s bulletin board policy, interfered with the rights of LPOA bargaining unit employees and denied the LPOA its right to represent its unit members. These practices constituted unfair practices in violation of Government Code Sections 3503, 3505, 3506 and 3509(b) and PERB Regulation 32603(a)- (c). Some time prior to the PERB’s issuance of the complaint, Vizzusi separated from his position as chief of police for the City of Lincoln.

The LPOA and City of Lincoln Agree to New Bulletin Board Procedures: Shortly after the PERB issued its complaint, the parties entered into settlement negotiations to resolve the PERB matter and the LPOA grievance. On or about March 25, 2010, the LPOA and the City participated in mediation facilitated by the PERB and on April 14, 2010, reached a global settlement. The agreement provided the LPOA with the right to install a locking glass case enclosing any associationdesignated bulletin board, wherein only LPOA executive board members can post documents on the bulletin board. Per the agreement, the city manager is the only City representative who will maintain a key, and must meet and confer with the LPOA before removing any objectionable postings. Additionally, any disagreement over the appropriateness of any posting is subject to the MOU’s grievance process. Finally, the police chief may not remove any documents from the bulletin board unless specifically and explicitly directed to do so by the city manager, and after removing a document the police chief must promptly return the key to the city manager.

ABOUT THE AUTHORS: David Mastagni and Kathleen Mastagni Storm are PORAC LDF panel attorneys from the law firm of Mastagni, Holstedt, Amick, Miller & Johnsen, which represents the Lincoln Police Officers’ Association and its members in all matters relating to their employment. The Mastagni et al. law firm has achieved the highest rating of AV Preeminent in both Legal Ability and Ethical Standards from Martindale-Hubbell and LexisNexis.

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