MASTAGNI LAW BULLETIN

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1 MASTAGNI LAW BULLETIN Fall 2012 INSIDE THIS ISSUE: Local 522 Prevails Over Staffing Violations Tulare Deputy Exonerated Social Media: Legal Rights and Responsibilities of Public Safety Agencies & Employees Congratulations Mastagni Super Lawyers & Rising Stars Governor Brown Rolls Back Public Pension Benefits Sacramento Police Officer Receives $300,000 in Back Pay Honoring the Heroism of First Responders President Profile 13 PERB, NLRB Protect Employees Free Speech Rights Mastagni Law Wins Sick Leave Grievance 2012 Legislative Updates Welcome New Clients! Welcome New Attorneys! Mastagni Special Events By Sean D. Currin TERMINATION OVERTURNED: LAKE COUNTY DEPUTY REINSTATED, FULL BACK PAY PLUS INTEREST Thanks to the support from the Lake County Deputy Sheriff s Association and PORAC Legal Defense Fund, Deputy Tom Andrews was vindicated of any wrongdoing concerning allegations of dishonesty. Arbitrator John Wormuth determined the Sheriff s Department lacked just cause in terminating Deputy Andrews from employment. Further, the Lake County Board of Supervisors unanimously upheld the arbitrator s decision calling for Deputy Tom Andrews to be immediately reinstated with full back pay, plus benefits and interest. Once again, Sheriff Rivero was determined to have overstepped his authority by unlawfully terminating another Sheriff s employee. Deputy Andrews Severely Injures His Back While On Duty Tom Andrews is a Detective with the Lake County Sheriff s Department with over 20 years on the force when his career was jeopardized by unfair and meritless allegations of dishonesty by Lake County Sheriff, Sheriff Rivero. In January of 2011, Deputy Andrews responded to the Middle Creek area of Lake County to investigate a suspicious death surrounding a body in a creek. When the mortuary came to collect the body they showed up with two people, one of whom was eight months pregnant at the time. Deputy Andrews believed she should not be lifting a heavy body from a creek in her condition, and assisted the other mortician with the removal. Unfortunately, Deputy Andrews significantly injured his back in the removal of the body from the creek. Deputy Andrews filed a legitimate workers compensation claim based on his injury and began his road to recovery. Sheriff Accuses Deputy Andrews of Fraud and Opens an Internal Affairs Investigation Shortly after filing the workers compensation claim, Lt. Martin of the Sheriff s Office heard Sheriff Rivero saying that he thought filing the claim was bulls--t and that Deputy Andrews timed his claim because he did not want to work for him and that he wanted to work for the old sheriff. Though Deputy Andrews was an outspoken (continued on page 4) CONGRATULATIONS TO MASTAGNI LAW S SUPER LAWYERS & RISING STARS! Five attorneys from Mastagni, Holstedt, Amick, Miller & Johnsen were selected as 2012 Northern California Super Lawyers and Rising Stars. Each candidate is evaluated on twelve indicators of peer recognition and professional achievement. (see story on p. 7.) 1912 I Street Sacramento, CA Phone: Fax:

2 SACRAMENTO AREA FIREFIGHTERS, LOCAL 522 PREVAILS OVER THE COUNTY OF SACRAMENTO FOR OVERTIME STAFFING VIOLATIONS By Kathleen Mastagni Storm On July 23, 2012, arbitrator Jerilou Cossack issued an opinion and an award in favor of Sacramento Area Fire Fighters, Local 522, ruling the County of Sacramento violated both the Memorandum of Understanding (MOU) and Standard Operating Procedures (SOP) by assigning administrative captains to the first eight hours of vacant 24-hour firefighter shifts. The County now will be required to fill vacant firefighter positions with other firefighters first according to the MOU and SOP protocol, and to pay the overtime rate for the entire shift. Firefighters are unusual among public service employees in the way their shifts are assigned. Where most civil servants work 40 hours per week, firefighters in Sacramento County work 56-hour weeks on 24-hour rotations. This schedule and reduced staffing levels lead to overtime, so the Union and County accounted for that in their MOU. The MOU explicitly states that when there is a firefighter position vacancy, all hours worked by the replacement will be charged as overtime. To ensure all firefighters in the unit have equal access to the overtime, and to control fatigue, the MOU provides, overtime shall be distributed fairly among employees insofar as circumstances permit. The Department s scheduling software, Telestaff, is supposed to manage the fair distribution, offering overtime off a list organized by rank. If there is a firefighter vacancy, the staff goes through all available firefighters first. Around March of 2011, then Acting Fire Chief John Conneally of the Sacramento County Fire Department began (continued on page 8) About the Law Firm Mastagni, Holstedt, Amick, Miller & Johnsen is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers and carries the AV rating in the Martindale- Hubbell Law Directory. The A signifies the highest level of legal ability, while the V denotes very high adherence to the professional standards of conduct, ethics, reliability, and diligence. In 2012, David P. Mastagni and John R. Holstedt were named Northern California Super Lawyers. David E. Mastagni, John P. Tribuiano III and Phillip R.A. Mastagni were named a Rising Star. The firm was also ranked fifth in Sacramento law firms by the Sacramento Business Journal. Year Established 1976 Practice Areas Labor & Employment Law Public Employee Discipline Fair Labor Standards Act Civil Litigation & Personal Injury Workers Compensation Labor Negotiations Disability Retirement Social Security Peace Officer Criminal Defense Production Coordinator Nicole L. Silverman Contributors Sean D. Currin Jeffrey R.A. Edwards Sean D. Howell Michael W. Jarvis David E. Mastagni Kathleen N. Mastagni Storm Stuart K. Tubis Steven W. Welty Kyle A. Wende Bulletin Editors Angela M. Mastagni Kathleen N. Mastagni Storm Christopher W. Miller Christina J. Petricca The Mastagni Law Bulletin is prepared for the general information of our clients and friends. The summaries of recent court opinions and other legal developments may be pertinent to you or your association. Please be aware this bulletin is not necessarily inclusive of all the legal authority you should consider when making your decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of this information to any particular matter. Page 2 LAW BULLETIN Follow us on

3 TULARE COUNTY DEPUTY CHARGED WITH USING EXCESSIVE FORCE EXONERATED By Sean D. Howell On October 21, 2011, while working intake in the Tulare County jail, Deputy Robert Carter made a split-second decision to act to eliminate a threat of harm to him and other deputies. As other inmates exiting a cell tried to divert his attention, Deputy Carter performed a take-down using a leg sweep when an inmate refused commands to face a wall and turned on Deputy Carter. The inmate sustained a cut to his face upon making contact with the concrete floor, causing the sheriff s administration to take the position Carter had used excessive force. Deputy Carter was working in intake when he received a call from dispatch that patrol deputies were en route with a subject arrested for public intoxication who was so combative the deputies placed him in leg restraints. An update was provided to Deputy Carter detailing the addition of an assault with a deadly weapon charge because of the inmate s conduct while in transport to the jail. While cuffed behind his back and leg shackled, the inmate kicked another subject seated in the patrol car inthe head. Upon arrival at the jail, the inmate was passively resisting. He was leaning against the deputies as they attempted to walk him into the booking area. The inmate then threatened to assault the deputies as he was being walked into the hallway of the intake area. Based on his behavior and threats, the deputies decided to place him in a cell by himself until he was no longer a threat to the deputies or other inmates. While waiting to clear a cell for the inmate, Deputy Carter ordered him to face the wall numerous times. In the video of the event, the inmate can be seen attempting to take the position of advantage away from Deputy Carter by turning his head around to see where Carter was standing and where he was looking. While Deputy Carter had turned slightly to keep an eye on the inmates behind him exiting the cell, he saw this inmate turn his entire body toward him. Fearing attack, Deputy Carter obtained a firm grasp of the inmate, forced him into the wall and then swept his legs with his own, taking the inmate to the ground. Deputy Carter broke part of the inmate s contact with the floor by using his own leg, but was unable to keep his face from striking the concrete. Tulare County s Misapplication of the Standard of Review for Use of Force The department proposed an 80-hour suspension alleging excessive use of force. At the Skelly hearing, the hearing officer argued performing a leg sweep on an inmate who was leg shackled and cuffed behind his back is an excessive use of force under any circumstances. At the hearing, a county witness testified the department holds its employees to a higher standard of review on use of force cases then the standard enunciated in Graham v. Connor or its own use of force policy. The captain stated deputies are only permitted to use the amount of force necessary to overcome the resistance. Use of Force Expert Explains Appropriate Standard While this may sound correct, the department made a crucial mistake. Peace officers are not limited to using only the force necessary, but are permitted to use any force, provided it is reasonable under the circumstances and conditions. Use of force expert Rocky Warren of Warren Consulting was able to educate the hearing authority and explain the fallacy in the department s higher standard. He explained that on a scale of one to ten, one being minimal force and ten being deadly (continued on page 16) GIANTS LAW ENFORCEMENT APPRECIATION NIGHT L-R: Mastagni attorneys Ian M. Roche, Phillip R.A. Mastagni, and law clerk Stryder Morissette support local law enforcement at AT&T Park. Mastagni Law Office celebrated the 8th Annual Law Enforcement Appreciation Night with the San Francisco Giants at AT&T Park. Partial ticket proceeds benefited the Bay Area Law Enforcement Assistance Fund and the California Peace Officers Memorial Foundation. LAW BULLETIN Page 3

4 EXONERATED LAKE COUNTY DEPUTY (Cont d) (continued from page 1) supporter of the former sheriff, Sheriff Rivero unjustly made the assumption that Deputy Andrews engaged in workers compensation fraud. While Deputy Andrews was on temporary disability, Sheriff Rivero allegedly received a phone call from a known criminal and supporter of the sheriff, Tom Carter. Mr. Carter allegedly told Sheriff Rivero that Mr. Andrews had been bragging he was out on disability and that he was out on disability because he did not like the Sheriff. This informant was inexplicably kept from internal affairs investigator Captain Howe by Sheriff Rivero, and nobody was allowed to contact Tom Carter as part of the investigation. Direct testimony proved Detective Andrews was not only never at a sporting event in Ukiah as the Sheriff s source allegedly claimed, but also that Deputy Andrews was actually responsible for Mr. Carter being criminally prosecuted. Based on this false information, Sheriff Rivero contacted York Insurance Services who in turn contacted LACO Investigations to conduct an investigation into Deputy Andrews workers compensation claim. LACO investigations followed and recorded Deputy Andrews every move for several months. Even after the initial investigation had concluded, at the request of Sheriff Rivero, the Lake County Sheriff s Office agreed to pay LACO Investigations additional money to continue their surveillance. Deputy Andrews went toall of his doctors appointments, and his doctors encouraged him to participate in his day to day life. Andrews stated that the doctors encouraged me to do that which I am able to do to essentially determine whether...i was going to be able to continue my performance as a peace officer. I have always been encouraged, even directly after I had the multi-disk replacement surgery, to go do what you can do...the absolutely worst thing for somebody, as it was relayed to me, who has had the surgery that I had, was to sit on my couch and do nothing. Deputy Andrews Attends Workers Compensation Deposition On April 25, 2011, Andrews was deposed by York Insurance Services regarding his workers compensation claim. Prior to the deposition, Sheriff Rivero and the attorney for York viewed several months of video materials provided by LACO Investigations. Deputy Andrews testified to the best of his recollection about the different kinds of activities he had participated inwhile off work. Mastagni attorney Sean D. Currin and Deputy Tom Andrews celebrate a victory over Sheriff Rivero. This deposition was the first workers compensation deposition Sheriff Rivero had attended involving a Lake County Deputy. The Sheriff was so transparent regarding his motivation and clear prejudice against Deputy Andrews, that he had anadministrative investigationand the administrative leave paperwork prepared and delivered to Deputy Andrews at the workers compensation deposition alleging dishonesty concerning the very same deposition. The questions Deputy Andrews was allegedly dishonest about were intentionally non-specific questions lacking any clarifying follow up questions. Lake County District Attorney Don Anderson reviewed the charging materials, determining the deposition was intentionally left vague and there was insufficient follow up questions toarrive at the truth of the matter. Several weeks later, Detective Andrews was interviewed by investigator Captain Howe. At that time, Deputy Andrews had an opportunity to view the videos and answer any specific questions posed by Captain Howe. Detective Andrews was never accused of dishonesty based on his interview. Sheriff Rivero Leads Biased Investigation Against Deputy Andrews In violation of any fair and unbiased investigation, Sheriff Rivero made it clear to internal affairs investigator Captain Howe just how he wanted him to conclude his investigation. Specifically, Sheriff Rivero approached Captain Howe and said, [Detective Andrews] is going to be fired. Consistent Page 4 LAW BULLETIN Follow us on

5 EXONERATED LAKE COUNTY DEPUTY (Cont d) with policy, Captain Howe forwarded his report to Captain Bauman, so he could issue a proposed discipline. Similarly, Sheriff Rivero approached Captain Bauman and told him that he needed to propose termination for Detective Andrews. Detective Andrews was served by Captain Bauman a Notice of Proposed Termination. Prior to the Notice of Proposed Termination, the Lake County Sheriff s Department had the Agreed Medical Examiner in Deputy Andrews workers compensation case view the surveillance videos and give a medical opinion as to the activities Deputy Andrews was engaged in. This report provided irrefutable medical testimony indicating Deputy Andrews was not dishonest regarding his injuries in what he could or could not do. Dr. Stark s report stated, I saw nothing in the investigational videos that caused me to conclude that Mr. Andrews was misrepresenting his physical condition. Despite having a neutral medical doctor opine, Deputy Andrews had not misrepresented his injury. Sheriff Rivero terminated Deputy Andrews. Arbitrator Reinstates Deputy Andrews With Full Back Pay - Harsh Words Given For Sheriff s Investigation Fortunately for Deputy Andrews and the rest of the Lake County Sheriff s Office, the opinion of their megalomaniacal department head is not the last word. With the help and support from the Lake County Deputy Sheriff s Association and PORAC Legal Defense Fund, the arbitrator unequivocally agreed that Deputy Andrews was not dishonest during his workers compensation deposition. In fact, the arbitrator emphasized the Department lacked the requisite proof by writing, the Department must be able to prove the facts on which it bases the discipline; and the Department has been unable to meet its burden of proof. The arbitrator took particular offense to the conduct of the Sheriff and went even further by noting, the investigation conducted by the Department was not fair or impartial and could not reasonably serve to support the discipline of the Grievant. There was significant testimony from former members of the Sheriff s command staff who stated they believed the Sheriff was engaged in unethical activities. This case seemed to highlight the unequal and biased investigation headed by Sheriff Rivero. The Lake County Deputy Sheriffs Association expects the sheriff to act fair and unbiased in all investigations. Sean D. Currin is an associate attorney in the Labor Department of Mastagni, Holstedt, Amick, Miller & Johnsen. He represents peace officers in administrative proceedings, grievances and critical incidents. Mastagni, Holstedt, Amick, Miller & Johnsen is in the Blogosphere! Please check out our Public Safety Law Blog at You ll find news about recent cases, articles about our ongoing litigation, and occasional commentary on decisions by the Public Employment Relations Board and the California and federal courts. Also, check out our newest blog Your Rights to Recovery: Personal Injury, Workers Compensation & Civil Rights in California at You can subscribe to the blogs by or RSS feed. There is also a link to our blogs at our website,. LAW BULLETIN Page 5

6 SOCIAL MEDIA: LEGAL RIGHTS AND RESPONSIBILITIES OF PUBLIC SAFETY AGENCIES & EMPLOYEES By David E. Mastagni & Jeffrey R.A. Edwards With the advent of instant communication social media technology over the last decade, questions frequently arise regarding to what extent can and should employers regulate on- and off-duty social media communications by officers. Mr. Mastagni and Mr. Edwards recently presented a series of classes on the subject on behalf of the California Peace Officers Association throughout California and at COPSWEST. This article provides a summary of those classes and addresses the following topics: (1) Peace Officer and Agency Liability; (2) Peace Officers First Amendment Rights; (3) Peace Officers Privacy Rights; (4) Concerted Activity and Union Rights; (5) Social Media as Evidence. Peace Officer and Agency Liability Social media posting of false or inappropriate materials can result in civil liability under a variety of privacy torts, intentional infliction of emotional distress or negligence. Christos Catsouras v. California Highway Patrol (2010) Cal.App.4th 856 provides a striking example of the liability risks officers and their employing agencies face when sensitive evidence isdisclosed. On October 31, 2006, Nicole Catsouras was decapitated in an automobile accident. CHP officers took multiple photographs of her decapitated corpse. Without consent, graphic and horrific photographs were ed to uninvolved members of the public. More than 2,500 Internet Web sites posted the photographs. Family members received malicious s containing the photographs. The court held public safety officers can be liable for negligence and intentional infliction of emotional distress for distribution of accident photos. The case eventually settled for $2.36 million. Peace Officers' First Amendment Rights The First Amendment provides, in part, Congress shall make no law... abridging the freedom of speech. Despite legitimate liability concerns, rules restricting social media posting or other forms of public communication must comport with the First Amendment. The protections of the First Amendment apply to the States and local governments. Where the employee s speech is protected by the First Amendment, attempts to discipline the employee for speech is not only prohibited, but also can result in liability for a civil rights violation. Public employee speech is not automatically protected; rather the Supreme Court applies the Garcetti v. Ceballos test. The Supreme Court held a public employee can only assert a First Amendment retaliation claim (1) if he or she spoke on a matter of public concern, (2) if he or she spoke effectively as a private citizen rather than as a public employee, i.e., if the speech was not a result of what were already the employee s official duties, and (3) if on balance the government had no adequate justification for treating the employee as it did. Generally, commentary about public budgets, law enforcement management, discrimination, political endorsements, and whistleblowing are matters of public concern, while private grievances or complaints are not. The courts have reached different results based on slight differences in the circumstances. In Chico Police Officers' Assn. v. City of Chico (1991) 232 Cal.App.3d 635, a police officer posted a copy of The Centurion! on the bulletin board, which discussed alleged misconduct involving a chief s collision and making disparaging comments ( management has the absolute right... to mismanage ; the Chief [has] his hands in your back pockets: squeezing your wallet on one side, trying to take your 4/10 on the other... Resist for now the temptation to revolt. ). The Court found these comments to be protected under the First Amendment largely because of the allegation of police misconduct. Conversely, in Marshall v. City of Atlanta (11th Cir. 1985) 770 F.2d 174, the Court found that calling supervisors downtown lackeys and using profanities following a conference was not protected speech. Peace Officers' Privacy Rights The three main privacy issues involving social media currently before the courts and legislatures involve searches of employer-owned electronic equipment, searches of stored Page 6 LAW BULLETIN Follow us on

7 SOCIAL MEDIA: LEGAL RIGHTS AND RESPONSIBILITIES OF PUBLIC SAFETY AGENCIES & EMPLOYEES electronic communications, and demands to inspect restricted social media sites. The first major privacy issue derives from the Fourth Amendment prohibition on unreasonable searches and seizures and it turns on whether an officer has a reasonable expectation of privacy. In City of Ontario, Cal. v. Quon (2010) 130 S.Ct. 2619, the United States Supreme Court held an officer did not have a constitutionally-protected privacy interest in the content of a department-issued alpha numeric pager. The Supreme Court also recognized limitations on public employee privacy rights in City of San Diego v. Roe, which upheld a police officer s termination for selling explicit videos on ebay. The second major privacy issue is a federal law, the Stored Communications Act. The Stored Communications Act prohibits employers from "knowingly, intentionally or purposefully" accessing social media sites without authorization. Plaintiffs can get damages, punitive damages, and attorneys' fees and costs. In Pietrylo v. Hillstone Restaurant Group (D.N.J. Sept. 25, 2009) a restaurant manager twisted the arm of an employee to get access to a chat room where other employees were talking about the restaurant. The employee sued under the Stored Communications Act. The jury found for the plaintiffs, awarding them $3, in damages. The judge ruled it was reasonable for the jury to decide the employee was coerced into giving over the password. The Stored Communications Act does not, however, protect employees if the employer has authorization. The most current privacy issue involves pre- and postemployment demands to disclose social media passwords or websites. The ACLU launched into this issue in early 2011 when the Maryland Department of Corrections attempted to avoid the Stored Communications Act by requiring employees to provide usernames and passwords on Facebook, Myspace, etc. In California, AB 1844 (signed August 27, 2012) prohibits employers from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media in the presence of the employer, or to divulge any personal social media. The California law eliminated a law enforcement exception in early versions of (continued on page 14) CONGRATULATIONS TO MASTAGNI LAW S SUPER LAWYERS AND RISING STARS! Super Lawyers selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on twelve indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Attorneys are researched regarding certain honors, results or credentials, which indicate a high degree of peer recognition or professional competence. No more than 5% of attorneys are selected for inclusion to Super Lawyers. Mastagni, Holstedt, Amick, Miller & Johnsen is an AV-rated law firm committed to serving clients throughout California. After decades of practice, we have built a proven track record of success that ideally qualifies us to represent private citizens, as well as police officers, firefighters and safety workers. This year the firm congratulates partners David P. Mastagni and John R. Holstedt for their selection to 2012 Northern California Super Lawyers. We are also pleased to announce David E. Mastagni, along with Phillip R.A. Mastagni and John P. Tribuiano III, have been named to Northern California Rising Stars. LAW BULLETIN Page 7

8 SACRAMENTO AREA FIREFIGHTERS, LOCAL 522 PREVAILS OVER THE COUNTY OF SACRAMENTO FOR OVERTIME STAFFING VIOLATIONS (continued from page 2) assigning administrative captains, assigned to a 40-hour week schedule, to fill the first eight hours of any 24-hour firefighter vacancy rather than firefighters at the overtime rate of pay. Telestaff has automated notices when overtime is available and automatically calls employees, starting with those in the same rank as the vacant position. Higher ranking officers (the Chief and those in charge of scheduling) can manually override the codes. Captain Steve Loza, the unit representative, questioned Conneally about the change, pointing out the administrative captain can not fill the first eight hours of a firefighter vacancy while performing administrative duties at the same time under the MOU. Conneally told Loza that the Director of Operations directed the practice and it would continue. With failed attempts to resolve the matter informally, Captain Loza filed a grievance to contest the practice. In his written denial, Conneally claimed, although overtime must be distributed fairly, it is up to the employer to decide which hours are designated overtime and that the first eight hours of a vacant firefighter shift was not overtime if an administrative captain was available to fill it. He argued the County Rights section of the MOU gives the County the power and authority to assign administrative captains to fill firefighter vacancies. He called his policy a long-standing practice. The firefighters under his command, many of whom had been with the Department longer than the Chief himself, had never heard of it. To fully litigate the issue, Local 522 relied on its lawyers at Mastagni, Holstedt, Amick, Miller, and Johnsen. Mastagni attorneys Kathleen Mastagni Storm and Christina Petricca represented the Union and presented their case before a binding neutral arbitrator, as required by the MOU. They argued the MOU language is clear department managers do not have discretion to assign firefighter overtime to administrative captains without exhausting the Telestaff list. The County Rights section of the MOU does not give the County that power. Most importantly, we argued this supposedly long-standing practice was expressly prohibited by the MOU. Firefighter vacancies must be filled first by same-rank employees that is, other firefighters, not administrative captains. The union also argued the negative impact its new practice had on administrative captains. It forced them to work two jobs at once. When assigned to eight hours of a firefighter vacancy, the captains also had to perform their administrative captain s duties. This created problems with prioritizing work and completing tasks while being able and ready to respond to calls, all while only being paid at their regular rate of pay. The County pointed to the County Rights clause of the MOU, claiming broad authority and discretion to handle any personnel issues in the department. The County s chief argument was firefighters have a right to fair distribution of overtime hours, but not a guarantee of getting overtime hours in the first place. The arbitrator found in favor of the Union, persuaded by our argument that employee rank must be the first factor used in determining who to assign overtime. Because of the way firefighters schedule their shifts, a vacancy necessarily creates an opportunity for overtime, and the managers must follow the MOU in assigning those hours. Administrative captains are not the same rank as firefighters, so they can only be assigned parts of those vacant shifts if other firefighters are unavailable. The arbitrator also made a factual finding the practice of filling firefighter vacancies with administrative captains had never previously existed, and indeed before March 2011, the vacancies had always been filled properly by firefighters. Placing administrative captains in firefighter shifts when not necessary is essentially a unilateral change in the terms of employment, and therefore an affront to the entire collective bargaining process. Arbitrator Cossack issued an award in favor of Sacramento Area Fire Fighters, Local 522, requiring the County to immediately reform its practice to filling firefighter vacancies at the overtime rate of pay for the full 24-hour shift and to follow the overtime rules outlined in the MOU and applicable SOPs. Kathleen N. Mastagni Storm is a senior attorney with Mastagni, Holstedt, Amick, Miller and Johnsen. Kathleen represents Sacramento Fire Fighters Local 522 in labor and disciplinary matters. Christina J. Petricca is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen, and co-counsel with Kathleen N. Mastagni Storm on Local 522 matters. Page 8 LAW BULLETIN Follow us on

9 GOVERNOR BROWN ANNOUNCES ROLLBACK TO PUBLIC PENSION BENEFITS By Michael Jarvis On August 29, 2012 Governor Brown announced what he called the biggest rollback to public pension benefits in the history of California pensions. The new laws change pension caps, cost sharing, what counts as pensionable, and industrial disability retirement. Most of the changes affect new hires, however, several changes affect current employees as well. On September 12, 2012, PORAC President Ron Cottingham joined Mastagni Law labor consultant Michael Jarvis and attorneys David E. Mastagni and Jeffrey R. A. Edwards to discuss the new laws in a widely-attended webinar. This article summarizes the highlights of that conversation and reflects on how the new laws affect public safety professionals. Who Counts as a New Hire? Anyone hired before January 1, 2013 and covered by any public retirement system counts as a Legacy Employee. A new employee is any employee who is new to any public retirement system or had a break in service of greater than six months. The importance of distinguishing between the two employee groups is simple: some changes affect one group and not the other, plus Legacy Employees will enjoy the benefit of being able to lateral to another agency under the prior retirement plans. What About Laterals? Legacy Employees will lateral to the lowest retirement plan offered by the agency that was in effect on December 31, The catch is the employee may not take off more than six months and must have reciprocity with the new agency. CalPERS and most 1937 Act Retirement Plans have reciprocity. Some agencies like Alameda require members to be off the payroll before starting on their payroll or it voids reciprocity, which can be costly in terms of retirement benefits since all new employees will have a lower retirement tier. Members currently employed as a Community Service Officer or in the Academy Class and paying into a miscellaneous retirement plan are also considered a Legacy Employee. A New Plan for New Employees One major change to the retirement systems is the plans they are allowed to offer. There are now three safety plans available for new employees, Safety Plan Option 2 57), Safety Plan Option 1 27) and Basic Safety Plan 57). The state mandated all new employees get the best retirement plan that is lower then the existing retirement plan at the age of 55; for example: 50 is 2.62% or 2.7% depending on retirement system at the age of 55, the new employee would get 57. Most safety plans in California will now be 57. The employer may not force a lower plan without employee agreement than the plan assigned by law using the above formula. It is also important to understand the retirement age for safety remains at the age of 50, the formula increases to the following maximums: 57, 57 and 57. Lastly, all new retirement plans will be based on the highest three-year average. Cap on Pensionable Compensation Another major change to the new retirement plans isa cap on compensation for purposes of retirement. Currently, systems have caps on the percentage amount against average final compensation period; e.g., CalPERS is 90% of a final compensation period, 1937 Acts vary from 90%, 100% and some are unlimited. New employees will have their percentage based off of a capped amount of $110,100 for agencies that have Social Security and $132,120 for agencies without Social Security. This means if an officer makes $150,000 a year, he will only contribute retirement contributions based on one of the two amounts above $132,120, then when he retires he will multiply his percentage against that number, e.g., $132,120 * (2.7*30) = retirement income of $107, If he makes less than the amount then the percentage will be multiplied against his highest three years. These dollar amounts may increase annually based on the CPI for all Urban Consumers. New Rules for Cost Sharing The media has made sharing in the cost of pensions front-page news. Cost sharing is addressed in different ways in these bills. First, all new employees will pay half the normal cost of their retirement plan; the employer may not impose employee contributions in excess of fifty percent. Some contracts may protect new employees from paying the cost share until the current contract expires. Second, effective 2018, AB 340 lets employers impose 50% of the normal cost of the retirement plan on current employees in most circumstances. The mechanics are little bit different in CalPERS and 1937 Act jurisdictions. Either way, employers may not impose on the employee group without bargaining through the impasse procedure including fact-finding. (continued on page 19) LAW BULLETIN Page 9

10 TO THE BRINK AND BACK: FORMER SACRAMENTO POLICE OFFICER PREVAILS AFTER SEVEN-YEAR RETIREMENT ORDEAL By Steven W. Welty Former Sacramento police officer Conrad Woodall recently was awarded over $300,000 in back pay and benefits and a medical retirement after seven years of litigation prompted by an erroneous disability determination by the City of Sacramento. The reinstatement and retirement awards came after Mastagni, Holstedt, Amick, Miller & Johnsen obtained a superior court judgment on Woodall s behalf. Hired as a Sacramento police officer in 1999, Mr. Woodall was married and enjoying a successful career in law enforcement when he suffered his first back injury in While pursuing a suspect, Woodall landed awkwardly when coming off a fence, injuring his knee and back. He did not miss any work. As time went on, Mr. Woodall was involved in the foot pursuits and fights that are typical in law enforcement. He worked out with weights and was active in martial arts. He wore the standard equipment to include a duty belt, firearm, baton, and radio. Mr. Woodall continued to be proactive and fought through his back injuries, but his orthopedic condition deteriorated quickly. By the end of 2004, Mr. Woodall was at the end of his rope with chronic back pain. His hand and arm were going numb and even his regular duties were causing problems with his back and neck. His doctors were unable to provide any lasting corrective treatment. Finally, after Mr. Woodall engaged in a three-minute foot pursuit of the driver of a stolen vehicle, Woodall s back locked up. The condition was an officer safety issue. On November 3, 2004, he applied for an industrial disability retirement with the California Public Employees Retirement System (CalPERS) based on orthopedic injuries to his back. City Forces Officer into Twilight Zone with Erroneous Finding It was at this point Mr. Woodall entered the twilight zone. Local CalPERS jurisdictions like the City of Sacramento have the authority to decide whether an employee s application for a work-related ( industrial ) disability retirement should be granted. When Sacramento received Mr. Woodall s application for an industrial disability retirement based on his back injuries, the city made a determination that sent Mr. Woodall s world into a tailspin for the next seven years. On March 24, 2005 the City approved a non-job related psychological disability retirement! Mr. Woodall was shocked. He had never suffered any psychological issues, had never asserted he was psychologically disabled, and no psychologist or psychiatrist had found him unfit for duty. No application for a psychological disability retirement had ever been filed by Mr. Woodall or the City. The only explanation given by the City was the City s doctor had expressed the opinion Mr. Mastagni, Holstedt, Amick, Miller & Johnsen Receives AV Peer Review Rating from LexisNexis Martindale-Hubbell LexisNexis Martindale-Hubbell has recognized Mastagni, Holstedt, Amick, Miller & Johnsen with a Martindale-Hubbell Peer Review Rating. Mastagni, Holstedt, Amick, Miller & Johnsen was given an AV rating from its peers, which means the firm is deemed to have very high professional ethics and preeminent legal ability. Only lawyers with the highest ethical standards and professional ability receive a Martindale-Hubbell Peer Review Rating. Page 10 LAW BULLETIN Follow us on

11 TO THE BRINK AND BACK: FORMER SACRAMENTO POLICE OFFICER PREVAILS AFTER SEVEN-YEAR RETIREMENT ORDEAL Woodall s back complaints were subjective and did not correlate with the observable issues with his back and neck. The City s decision stigmatized Mr. Woodall with the unwanted label of a psychological disability. His retirement benefit was a dismal taxable benefit of just $600 a month, a fraction of what he made as a police officer, and nowhere near enough to support himself and his family. In a bad economy, Woodall s life became a bitter effort to survive. Mr. Woodall appealed the City s determination, but his hearing did not occur for 18 months. In the meantime, a new team of doctors conducted an additional MRI. The MRI revealed Mr. Woodall had a ruptured disc and two disc bulges in his neck that were compressing a nerve root on his spinal cord. In addition to the chronic back problems, limb numbness and weakness, his hand had developed visible atrophy. In December 2005 Mr. Woodall had major surgery to his cervical spine. It was clear his condition was not subjective. In August 2006, Mastagni, Holstedt, Amick, Miller & Johnsen proceeded with Woodall s retirement appeal hearing. The City stipulated the basis of Mr. Woodall s disability was not psychological, as there was no competent medical evidence to support such a position. Three months later, the administrative law judge denied Mr. Woodall s disability retirement application on the basis there was not sufficient evidence he was physically disabled while he had still been employed. The judge s decision was based on a finding the MRI and ensuing surgery occurred after Mr. Woodall was retired. After the decision, and consistent with state law requiring employers to reinstate employees whose disability retirement applications are denied, Mr. Woodall repeatedly requested to be returned to work as a Sacramento police officer. But the City flatly refused to return Woodall to work, and he remained out on the non-job related psychological disability retirement. He was still trapped in the twilight zone. A CalPERS public safety officer has a mandatory right to reinstatement to his former position if his disability retirement application is denied. In addition, the City s own regulations recognized the administrative decision was final and binding on the member and the City. However, the City attempted to argue Mr. Woodall had voluntarily accepted the psychological disability retirement and waived reinstatement because he had been cashing the CalPERS benefit checks. The argument was profoundly without merit. After multiple rounds of pleading, depositions, and discovery, the court rendered a decision. On March 4, 2011, the Sacramento Superior Court ordered the City to reinstate Woodall to his position as a police officer. He was also awarded over $300, in back pay and benefits. The court recognized the administrative decision had been accepted by the City and had not been challenged by Woodall. The court also recognized the City s unilateral action of imposing a non-job related psychological disability retirement was not in the nature of an offer that Mr. Woodall could accept. Therefore, it was not voluntary or a waiver of appeal. Mr. Woodall was recently approved for an industrial disability retirement based on his orthopedic injuries. Now that he has escaped the twilight zone, Mr. Woodall has the retirement he should have been awarded back in Senior associate attorney Steve Welty is a former Yuba City police officer who specializes in labor and employment law representation and disability retirement litigation. He represented Conrad Woodall throughout his ordeal. Sacramento POA Authorizes Appeal Mr. Woodall s union, the Sacramento Police Officers Association, authorized Mastagni, Holstedt, Amick, Miller & Johnsen to take legal action to force the City to return Woodall to work. The firm filed a petition for writ of mandate in Sacramento Superior Court seeking an order of reinstatement and back pay. LAW BULLETIN Page 11

12 HONORING THE HEROISM OF FIRST RESPONDERS ART COMPETITION AND RECEPTION RECEPTION AND ART SHOW TO HONOR THE ARTWORK OF RILEY LOPEZ Each last Thursday evening of summer the firm hosts clients, community leaders and public safety persons to meet and socialize in our historical Victorian house located at 1901 I Street in Midtown Sacramento. The invitation to join the event is extended to our incumbent and candidate friends of police and fire, allowing an opportunity to discuss the needs of Sacramento and California. The firm s kick-off event this year was an opportunity to award the winner of 2012 s "Honoring the Heroism of First Responders" student art competition. Sacramentoarea middle and high school students were invited to create artwork depicting their appreciation for first responders. The award for overall excellence in the 2012 "Honoring the Heroism of First Responders" Art Competition went to Kennedy High School's 11th grade student, Riley Lopez. Mastagni Law Firm, the Firefighter Burn Institute and 522, recognized Riley s artwork with a reception and a Second Saturday art show at the Midtown Victorian. Thank you. Brian Rice, President of Local 522, graciously awarded Riley a memento plaque and $ Brian and Riley are pictured here along with Jeffrey Edwards of the Mastagni Law Firm and Vice Mayor Angelique Ashby. Riley stood alongside his teacher, Kennedy High School s Kathleen Sailer, whom he attributed the opportunity to participate in events that inspire. Page 12 LAW BULLETIN Follow us on

13 PRESIDENT PROFILE: STEPHEN SCHLUER, MANTECA POLICE OFFICERS ASSOCIATION Stephen Schluer, Manteca Police Officers Association s president, has been a police officer for nearly 16 years with the City of Manteca. Stephen has been the president of the MPOA for the past two years, and is running unopposed for another two year term. He has been on the MPOA Board in one facet or another for the past ten years. These past two years have been very exciting for me as president, said Stephen when asked about being president of the MPOA. We have negotiated a new contract and revamped our association. Stephen is a detective for Manteca Police Department (MPD) and is assigned to the Delta Regional Auto Theft Team (Delta RATT) through the California Highway Patrol. Stephen is also assigned to the MPD Hostage Negotiations Team where he is a Team Leader. Stephen was the recent recipient of the Manteca Police Department s Meritorious Service Award. He was given the award for his actions on April 6 th, On that day, Stephen had received information about a stolen vehicle being in the central area of Manteca. After a short surveillance, the vehicle became mobile and Stephen tried to make a vehicle stop. There was a lengthy pursuit through urban and rural areas, and during this pursuit, an AK-47 Assault Rifle was thrown from the vehicle. Stephen and other officers converged on the area where the suspect had crashed the stolen vehicle. The suspect was observed running from the vehicle with a Mac 9 Sub-machinegun in his hands. Stephen located the suspect himself, and without back-up, took the suspect into custody without incident. The suspect was a documented gang member and during the pursuit was in possession of an AK-47 assault rifle, numerous high capacity loaded magazines, narcotics paraphernalia and a substantial amount of crystal methamphetamine. Through your efforts, a serious threat to the community and law enforcement was successfully abated, at significant [risk] to your own self, stated Police Chief Nick Obligacion during the presentation ofthe award. Stephen is very much a family man. He has been married to his lovely wife, Thaera, for eight years, and has a daughter, Lela (age 7), and son, Collins (age 5). Stephen is also extremely committed to the community where he lives and serves. He is a member of the Sunrise Kiwanis, member of the Board of Directors for the Boys and Girls Club of Manteca, President of the Manteca Youth Softball Manteca Police Detective Stephen Schluer is the recipient of the Meritorious Service Award for the pursuit and capture of a Manteca man with several weapons, including an AK-47. Association, Chairman of the Manteca Every 15 Minutes Program, and member of the Board of Directors for the Manteca Police Chief s Foundation. Stephen has received the Manteca Police Department Purple Heart, Rotary Officer of the Year (2010), Community Policing Ribbon, Community Organization Recognition Award, and Department Recognition Award. Stephen has his Bachelor of Arts in Government from Sacramento State. He is a Life Loyal Sigma Chi of the Sigma Chi Fraternity, where he is an active member of the Sacramento Valley Alumni Chapter. Congratulations Mastagni Employees! Sacramento Business Journal ranks Mastagni Law Office 5th in Sacramento Law Offices! LAW BULLETIN Page 13

14 SOCIAL MEDIA: LEGAL RIGHTS AND RESPONSIBILITIES OF PUBLIC SAFETY AGENCIES & EMPLOYEES (Cont d) (continued from page 6) violations and seeking discovery of their social media the bill, suggesting that background and Internal Affairs investigators cannot even request officers or prospective employees provide access to social media websites. Concerted Activity and Union Rights It is increasingly common to hear news of an employee getting fired for posting unfavorable comments about his or her employer on Facebook and other social media websites. The NLRB has become active in this area. The NLRA or Wagner Act, like the MMBA, protects concerted activity; i.e. when an employee interacts with other employees or on behalf of other employees for their mutual aid and protection. Although not binding on California public employers, NLRB decisions are persuasive authority to PERB and California Courts. The NLRB General Counsel has issued a series of reports providing guidelines setting forth the type of social media restrictions that violate associational representation rights. The NLRB has rejected rules restricting disparaging comments about employer, identifying oneself as an employee, discussing confidential information, and prohibiting unprofessional communication. Rules prohibiting bullying or harassment have been upheld as well as limitations on misrepresenting the opinions of the employer. postings. Electronic discovery is on the rise in all areas of litigation, but public safety officers are particularly susceptible to having their social media subpoenaed not only to challenge their workers compensation claims, but also to impeach their testimony or search for evidence of bias or inflammatory materials. For example, in Manasco et al. v. Board of Police Commissioners et al. (2011, E. D. Mo.), officers had to intervene to limit the discovery of text messages on their phone, but were required to produce ten days of text messages. In Jerome Vorus v. District of Columbia (D.D.C. Case No. 1:11-cv-1219), the ACLU filed a federal civil rights lawsuit against the police department in the District of Columbia over its policy for dealing with citizens cell phone videography. Ultimately, the District settled the case with the ACLU and wrote a new policy making it very challenging for police there to seize evidence of crimes on citizens cell phones or limit activists interference in law enforcement operations. It is clear the ACLU will remain very active in this area. They have recently launched a smart phone application for activists to record officers and send video and audio files directly to the ACLU for review. Conclusion In Costco Wholesale Corp. (2012) 258 NLRB No. 106, the NLRB invalidated a policy restricting statements made on social media sites that "damage the Company, defame any individual or damage any person's reputation", because it could cause employees to assume statements of protest or criticism made on social media sites were disrespectful or injurious. Karl Knauz Motors Inc. (2012) 358 NLRB No. 164 involved the termination of a car salesman over Facebook posting of photos of a car accident and comments critical of a sales event. The employee s criticized the sales event because it related to issues that could affect the sales staff's commissions. The termination was upheld because they were posted solely to ridicule the dealership. Pending challenges to the Lexipol policy on Social Media will likely determine the extent to which these NLRB authorities are applicable to public safety employees. Social Media as Evidence The courts have already determined the videotaping of public officials is an exercise of First Amendment liberties. Marker v. City of San Jose (N.D. Cal., July 31, 2012) 2012 WL However, criminal defendants and plaintiffs are increasingly suing law enforcement for civil rights Social media is sure to stay on the front burner of law enforcement labor issues in the coming years as the ACLU files more lawsuits, public defenders become more savvy, and law enforcement managers seek to regulate officers social media activity. With significant risks and rewards for increased use of electronic devices and social media, it is critical the law enforcement community remain vigilant in protecting officers rights and law enforcement labor associations, and in particular, stay current on the latest developments in this quickly-evolving area of law. David E. Mastagni is a partner with Mastagni, Holstedt, Amick, Miller & Johnsen, where he emphasizes labor and employment law representation. Jeffrey R. A. Edwards is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen, who concentrates on complex civil litigation and the Fair Labor Standards Act. Page 14 LAW BULLETIN Follow us on

15 PERB, NLRB PROTECT EMPLOYEES SPEECH RIGHTS ByKyle A. Wende, Law Clerk In a pair of recent cases, the Public Employment Relations Board (PERB) and the National Labor Relations Board (NLRB) fired back at employers who retaliated against employees for their spirited comments during concerted activity. PERB ruled the Department of Corrections could not discipline a union representative for disrespectful behavior in a meeting. The NLRB went even further, ordering an employer to reinstate an employee who made several crude and arguably threatening statements during a union decertification effort. The California case is State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No S. The employee was a union representative, acting on behalf of another employee in a disciplinary meeting. During the meeting, the union representative tried to make statements, but a management representative stopped her and told her she could not speak. In response, the union representative held her hand up towards the manager and said she was not speaking to him. Similar exchanges happened several more times during the meeting. Afterwards, the Department gave the union representative a Letter of Instruction for insubordinate, discourteous, unprofessional, and disrespectful behavior. PERB reaffirmed employee conduct around union matters is protected unless found to be sufficiently opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference in the workplace. This is not a new rule, and PERB has long understood representatives of both unions and employers may resort occasionally during representational meetings to intemperate speech or less than civil conduct. The rule exists to ensure employers cannot punish union activity under the pretense of a general workplace code of conduct. In the federal case, Fresenius USA Manufacturing, Inc. Case 02-CA , the NLRB came out even stronger for union free speech rights. The employee was a union supporter who opposed an effort to decertify Teamsters Local 445 at Fresenius New York facility. The employee made an anonymous post in a newsletter that began with, Dear P*****s, Please Read, and ended, Warehouse Workers, RIP. Other employees complained, calling the post vulgar, offensive, and threatening. The employer fired the employee, in part for the posts. But, the NLRB ruled it was illegal to fire the employee for his comments. The NLRB decided the employee s language was not bad enough to lose protection under federal labor laws. SANTA CLARA COUNTY CORRECTIONAL PEACE OFFICERS ASSOCIATION (SCCCPOA) AT THE 2012 CUSA CONVENTION STATE COALITION OF PROBATION ORGANIZATIONS QUARTERLY MEETING Liane Buffie McFadyen, former Colorado State Representative, Julio Alvarez, SCCCPOA Vice President, Carlton Gray, SCCCPOA Sergeant at Arms, and Jim Biardi, Florida PBA State Correctional Officer President at the 2012 CUSA Convention. Mastagni partner Christopher Miller addresses the State Coalition of Probation Organizations, which he serves as general counsel. LAW BULLETIN Page 15

16 MASTAGNI LAW OFFICE WINS GRIEVANCE OVER SICK LEAVE BONUS By Stuart K. Tubis Earlier this year, the Martinez Police Department denied one of its non-sworn employees, Robin Gonzales, a sick leave bonus due to her under the Memorandum of Understanding (MOU). According to the MOU, employees are eligible for a sick leave bonus when they use 32 hours of sick leave or less in a given fiscal year. Ms. Gonzales had received surgery for a work-related injury and asked her Department at that time how her sick leave time would be affected and if she would be denied a sick leave bonus. The Department told Ms. Gonzales that any time off used to recuperate from her injury and surgery would not count against her for purposes of a sick leave bonus. Ms. Gonzales acted according to the instruction of her department and used less than 32 hours of sick time for her injury. Though many hours were necessary to recover from the injury, the City was reimbursed for an overwhelming majority ofthose hours and workers compensation sick leave was used for much of the remaining time. In total, Ms. Gonzales used only 22 hours ofactual sick leave for the entire fiscal year, much lessthan the cutoff for a sick leave bonus. However, on July 17, 2012, Ms. Gonzales discovered the Department s error and attempted to resolve the matter informally. That was not successful, so Ms. Gonzales turned to attorneys at Mastagni, Holstedt, Amick, Miller, and Johnsen. Stuart Tubis, a lawyer for the firm, and David Topaz, a negotiator for the firm, took up the case on Ms. Gonzales behalf. Mr. Tubis filed a formal Step 1 Grievance and Mr. Topaz skillfully worked to negotiate a favorable outcome with the department. After their work on the case, Mastagni Law Firm and Ms. Gonzales prevailed. The grievance was won at the first step without having to file additional grievances in the multi-step process. The Department approved the remedy requested by Ms. Gonzales and granted her a Sick Leave Bonus of eight hours of CTO in full satisfaction of her complaint. This was a small victory with larger symbolic importance and has shown that departmental error can be corrected with the proper legal approach. Stuart K. Tubis is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen in the Workers Compensation Department. TULARE COUNTY DEPUTY EXONERATED (Cont d) (continued from page 3) force, if it is reasonable to use three, four and five, the peace officer is not required to use three merely because it is the least amount available. The officer is permitted to use five if he or she makes that split second decision to do so. ground. With this training, Carter did as he was told and used the tools he was given to act reasonably under the circumstances. Hearing Authority Exonerates Deputy Carter In addition to attacking the department s misapplication of the well-settled level of review, the department failed to train Deputy Carter properly. Department witnesses acknowledged Deputy Carter slipped through the cracks with respect to his training in defensive tactics and weaponless defense. In the seven years he has been employed with the department, he never received updated defensive tactics or weaponless defense training. In the words of Mr. Warren, Training equals tools. If you do not get training you won t have as many tools to use. Because of the complete lack of training the department provided Deputy Carter, he had limited tools available to control the inmate. Deputy Carter was taught to take an inmate to the ground sooner rather than later because the deputy has a better opportunity to control an inmate on the The hearing authority was comprised of three panel members. A member selected by Deputy Carter, a member selected by the Sheriff s office and Commissioner Cox from the County Board of Supervisors. After twenty minutes of deliberation, the panel members returned with a decision completely reversing the findings of excessive force and eighty-hour suspension and awarding Deputy Carter full back -pay. In addition, the panel ordered the department to enroll Deputy Carter in the next weaponless defense tactics course offered by the department. Sean D. Howell is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Robert Carter in his administrative appeal before the Tulare County Employment Appeals Panel. Page 16 LAW BULLETIN Follow us on

17 Mastagni Law Office is Going Mobile! All of us at the Mastagni Law Firm are excited about launching the Mastagni Law Firm mobile application. The firm s app will include an exposure report, for on-the-job contact with hazardous or potentially dangerous elements; an accident log to record any and all important information pertinent to your potential case; as well as medical appointment logs in the event you are injured and must keep a reference record of doctors appointments. The app will give you direct 24-hour call service and FAQ s on protecting your rights. The Mastagni Law Firm provides first responders and private citizens with helpful resources and emergency tools to assist with on-the-job injuriesand life-changing events. App Features: Accident Log to record pertinent information at the scene of a vehicle accident Ability to capture photos of accident scene and vehicle damage Medical Log in the event you are injured, an automated calendar will keep track of your doctor appointments, dates and allows for notes on medical recommendations 24-Hour access to call our attorneys to report a Critical Incident Exposure Report to submit to our attorneys in the event you have been exposed to a potentially hazardous element Helpful resources on Contract Negotiation Contact form to submit to our attorneys Since 1976, we have been assisting police officers, firefighters, and other safety workers in matters ranging from internal discipline and criminal defense to wage and hour, disability, and workers' compensation claims. Our Sacramento law firm also represents their unions and labor associations in collective bargaining contract negotiations and other matters. For over 37 years, the Sacramento law firm of Mastagni, Holstedt, Amick, Miller & Johnsen has served clients throughout California in a wide range of civil law matters, including labor and employment law, wage and hour litigation, personal injury, workers' compensation, disability retirement, Social Security disability appeals, and public employment contract negotiations. We expect a mid-november launch date. Look for the free Mastagni Law Firm app on Android Market and itunes! LAW BULLETIN Page 17

18 2012 LEGISLATIVE UPDATES By Jeffrey R.A. Edwards In the last legislative session, the Legislature passed hundreds of new laws. The most significant bills made major changes to retirement security and the workers compensation system. But several other bills affect public safety professionals - both on bread-and-butter labor issues and public safety issues. Here s a run down of what Governor Brown signed and vetoed. Important Labor Issues AB 2140 reduces the PERS contribution rate of CHP employees by 3%. AB 2285 sets a fine of up to $1,000 for cheating on a peace officer basic course exam. AB 2269 makes May the Labor History Month and encourages schools to participate with special lessons. AB 2069 extends workers compensation benefits to Sheriff s Special Officers of Orange County. AB 2674 creates more specific rules for an employee s right to inspect employment records. SB 987 expands some rights employees have in the CalPERS system. SB 1234 creates the California Secure Choice Retirement Savings Trust, offering employees a new state-protected retirement savings program. AB 1345 changes some rules for auditing local governments. AB 2343 clarifies rules governing the Department of Justice s use of criminal history information for employment and other purposes. Governor Brown VETOED AB 2451, which would have set shorter time limits for surviving families of firefighters and peace officers to collect death benefits in some workers compensation cases. Public Safety Regulations AB 801 gives code enforcement officers the peace officer power to arrest when enforcing illegal dumping or littering laws. AB 2055 makes it easier for police to get search warrants to use electronic tracking devices. AB 2015 creates state-wide rules for arresting officers to ensure care of suspects minor children. AB 2189 allows legal immigrants to get a driver s license without a social security number. SB 1466 clarifies which employees of the City of Los Angeles count as peace officers. SB 1067 allows the City of Tululake to enter a mutual aid agreement with Marin, Oregon. SB 1315 allows the local agencies in the County of Los Angeles to more strictly regulate imitation firearms. AB 1098 changes how revenue from vehicle license fees is distributed. Governor Brown vetoed AB 1081, which would have prevented California law enforcement from using federal immigration laws as a reason to hold criminal suspects longer than state law allows; AB 1968 which would have would forced some chief probation officers to arm probation officers with high-risk caseloads; AB 2623 which would have required State Hospitals to arm officers; SB 1434 would restrict law enforcement s ability to locate electronic devices by demanding that information from internet and other electronic service providers; and AB 2527 would require, rather than allow, courts to end a person s probation in certain circumstances. Mandatory Reporting SB 1051 changes the rules for mandatory reporting of death, injury, and abuse, in state hospitals for persons with developmental disabilities. AB 1434 and SB 1264 change the rules for mandatory reporting of suspected child abuse. AB 40 changes the rules for mandatory reporting of suspected elder or dependant adult abuse. Victims Rights SB 1144 removes a Department of Justice requirement to post future violence risk information for sex offenders on the internet. SB 1299 expands the rights of crime victims to file for and receive compensation from the California Victim Compensation and Government Claims Board Restitution Fund. SB 1479 further punishes counterfeiters by forcing them to pay victims for the value of counterfeit goods not yet sold. AB 1593 changes the way the Board of Parole Hearings deals with evidence of intimate partner battering. SB 1082 changes some rules governing the state program that protects address information of domestic violence and stalking victims. Sentencing SB 661 makes it a crime to picket at a funeral. Page 18 LAW BULLETIN Follow us on

19 2012 LEGISLATIVE UPDATES SB 1221 generally prohibits private citizens from using dogs to hunt bears and bobcats, with exceptions for protecting property. AB 1794 increases enforcement for crimes of misuse of confidential employment information. AB 2327 adds to laws relating to fraud by charitable organizations, and will give the Attorney General more power to enforce those laws. Corrections SB 1462 allows county sheriffs to release some terminally ill prisoners if they pose no threat topublic safety. SB 542 expands the approved use of the Inmate Welfare Fund. AB 2127 allows counties to offer county inmates more options for work-release credit. AB 1445 creates a pilot program to allow some counties to use inmate welfare funds to assist inmates in certain ways after release. Governor Brown vetoed AB 1270, which would have required state prisons to allow members of the press to speak to inmates in person; and AB 2031, which would have added more positions to the Board of State and Community Corrections and local Community Corrections Partnerships. Jeffrey R. A. Edwards is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen, who concentrates on complex civil litigation and the Fair Labor Standards Act. PUBLIC PENSION BENEFITS (Cont d) (continued from page 9) What Parts of Compensation Count Toward New Employees Pensions? AB 340 also limits what is compensable for new employees in CalPERS. Pensionable compensation excludes any benefit paid to increase retirement benefits, unused leaves (vacation, annual, personal, sick and CTO), allowances (housing, vehicles, or uniforms), overtime (does not include scheduled overtime, i.e. 3/12 4/12 or 48/96, etc), and bonuses. What counts in 1937 Act counties can be different in each one. These changes affect current and new employees and have created significant issues of interpretation with the 1937 Act Retirement Systems. It is extremely important to get a position statement from your CERA as soon as possible. Good News on IDRs Time for the good news! There are new Industrial Disability Retirement rules for CalPERS as part of AB340. The main change here is for members who have served long enough to exceed 50% of their pay and who are less than the age of 50. On the old law, this group of members would only receive 50%. For example you started as a firefighter at the age of 18 in a 3 at 50 retirement plan, you are now 48 and are medically retired. Under the current system you would receive 50% not 90%, but under the new law your retirement would now be 50% tax free plus31% taxable. While that s still less than 90% service retirement, it is significantly greater than the current system for an IDR. Michael W. Jarvis is a former private sector management and human resources professional, and the firm's expert in classification & compensation studies and health care systems. LAW BULLETIN Page 19

20 WELCOME NEW CLIENTS! LOS ANGELES COUNTY CITY ATTORNEYS ASSOCIATION NEVADA COUNTY DEPUTY SHERIFFS ASSOCIATION The Los Angeles City Attorneys Association has retained Mastagni, Holstedt, Amick, Miller & Johnsen to serve as the Association s litigation counsel. The Association represents over four hundred members working as deputy and assistant city attorneys in the City Attorney s Office. Partner, David E. Mastagni, and associate, Isaac Stevens, are serving as lead counsel for the Association in a state court lawsuit challenging the City s attempt to freeze retiree medical benefits and a federal court lawsuit challenging the City s unilateral implementation of mandatory, unpaid furloughs onthe Association s members. The Nevada County Deputy Sheriffs Association and President Mike Sullivan recently hired Mastagni, Holstedt, Amick, Miller & Johnsen as corporate counsel. The Nevada County Deputy Sheriffs Association designated our law firm as its legal defense provider. David E. Mastagni and Judith A. Odbert will serve as the Association s primary attorneys handling all corporate counsel matters, discipline cases and grievances. Labor Negotiator David E. Topaz will work with Mike Sullivan and the board in contract negotiations. MODOC DEPUTY SHERIFFS ASSOCIATION RESCUE FIRE DEPARTMENT The Mastagni Law Firm is pleased to welcome our newest client, Rescue Firefighters Association. The Fire District is located in the City of Rescue, in El Dorado County. The Rescue Firefighters Association has retained our firm for contract negotiations, grievance and discipline representation, and corporate counsel. Attorney Kathleen N. Mastagni Storm and Labor Negotiator Dennis Wallach look forward to working with the Association and President Brett Jones, and assisting them in all areas. The Modoc County Deputy Sheriffs Association, presided over by Mark Muller, has retained Mastagni, Holstedt, Amick, Miller & Johnsen for representation in labor negotiations, legal defense, and corporate counsel. The Association is composed of approximately 40 members, and includes the classifications of Sheriff s Deputies, Correctional Officers, and Dispatchers. The group of law enforcement officers was previously represented by LIUNA (Laborers International Union of North America), before making the move to us. Labor Negotiator, Mark Salvo, will serve as the lead consultant for the Association, alongside one of the firm s Senior Attorneys, Steven Welty. We look forward to assisting the Modoc County Deputy Sheriff s Association in contract negotiations with the County in upcoming months. Page 20 LAW BULLETIN Follow us on

21 WELCOME NEW ATTORNEYS! ANDREW R. MILLER ERIN M. DERVIN Andrew R. Miller is an associate attorney in the Workers Compensation Department at Mastagni, Holstedt, Amick, Miller & Johnsen. He represents injured workers in hearings and trials before the Workers' Compensation Appeals Board in California. He is licensed to practice law in California state courts and the Federal Court of the Eastern District of California. Andrew has also had prior experience in civil litigation where he made arguments through law and motion and assisted with trials. He graduated from McGeorge School of Law, and earned a certificate in international legal studies. While at McGeorge, he also served as a law clerk for the California Department of Personnel Administration, and was one of the founding officers of the McGeorge Employment and Labor Law Society. He also volunteered as a legal intern for a public interest watchdog of the Lawrence Livermore National Laboratory. As a captain of California Lutheran University s track team, he made the senior all-time list in the 400 meter hurdles. He is an Eagle Scout. CRAIG A. TOMLINS Erin M. Dervin joined Mastagni, Holstedt, Amick, Miller & Johnsen as an associate attorney in the Labor Department. Previously, she was a prosecutor with the Shasta County District Attorney s Office. There, she handled litigation and trials including complex financial crimes, sexual assaults, narcotics, domestic violence and general felony practice. She has tried over 60 jury trials. Erin also prosecuted civil cases in the area of Consumer Fraud and Unfair Business Practices, obtaining judgments against numerous national and multi-national organizations. Erin has been an adjunct professor in Criminal Justice at National University, and has instructed law enforcement in the areas of Welfare and Institutions Code Section 5150 as well as in investigative techniques in financial crimes. Erin coordinated the Shasta County Mock Trial Competition for fourteen years. Mastagni, Holstedt, Amick, Miller & Johnsen Support the Deputy Jeff Mitchell Whiffle Ball Tournament! Craig A. Tomlins is an associate attorney with the Labor and Employment Department of Mastagni, Holstedt, Amick, Miller & Johnsen. Craig represents public sector employees in administrative and disciplinary investigations, hearings, arbitrations and officer involved shootings. Before joining Mastagni, Holstedt, Amick, Miller & Johnsen, Craig was a litigation associate at a Sacramento firm practicing civil rights and general civil litigation. Craig earned his J.D. from the University of the Pacific, McGeorge School of Law and graduated as a member of the Order of the Coif and Roger J. Traynor Honor Society. He received his B.A. from the University of San Diego, graduating magna cum laude. Mastagni, Holstedt, Amick, Miller & Johnsen support the Deputy Jeff Mitchell Whiffle Ball Tournament in Elk Grove. Deputy Jeff Mitchell was killed in the line of duty in The tournament in his name was started in 2008 to raise funds for benevolent groups assisting law enforcement. This year the tournament raised about $ This amount was contributed toward the Brian Hall Scholarship Fund, EOW, and Norcal COPS. LAW BULLETIN Page 21

22 MASTAGNI LAW OFFICE CO SPONSORS THE 9/11 RUN TO REMEMBER SACRAMENTO AREA FIREFIGHTERS WIDOWS & ORPHANS FUND: 9/11 RUN TO REMEMBER The Sacramento Area Firefighters Widows & Orphans Fund is a charity established to provide financial and other assistance to injured and fallen members of Sacramento Fire Fighters Local 522 and their families; provide scholarship and tuition reimbursement programs for the benefit of injured and fallen members of Local 522 and their families; and provide public education and community outreach related to the importance of fire prevention and safety in the community. The Widows & Orphans Fund holds the 9/11 Run to Remember to honor fallen first responders and their families. The event is widely supported by local businesses and other law enforcement associations. Mastagni Law Office was proud to participate. For more information about how you can contribute to the Sacramento Area Firefighters Widows & Orphans Fund, please visit Mastagni attorney Dan Osier crosses the finish line. L to R: Amanda Stevens, Deputy District Attorney Amber Hawk, Mastagni attorney Isaac Stevens, Mastagni labor negotiator Jesse Harrel, Maxwell Conor Donoghue, Mastagni attorney Tony Donoghue, Mastagni attorney Ian Roche, Heather Sullivan, Heather Roche and Ryan Roche take a group picture at the finish line of the 9/11 Run to Remember. Mastagni attorney Tony Donoghue and son Maxwell support the fallen heroes. Page 22 LAW BULLETIN Follow us on

23 MASTAGNI LAW OFFICE SPECIAL EVENTS & SPONSORSHIPS 2nd ANNUAL PLACER FOUNDATION GOLF TOURNAMENT 42nd ANNUAL MPOA GOLF TOURNAMENT L to R: Kevin Oakley, VP of Monterey County Deputy Sheriffs Association, former deputy Mike Richards, & Mastagni attorney Craig Tomlins. STAR 6 GOLF TOURNAMENT The Foundation is a deputy benevolent foundation designed to provide assistance to injured or fallen deputies or family members of the Placer County DSA. The firm continues to support the foundation as a Bronze Sponsor of the annual golf tournament in Auburn, California. On behalf of the firm, David E. Mastagni accepted a limited edition print created by Sgt. Ty Conners. ALAMEDA COUNTY SHERIFF S OFFICE SWAT TEAM TAKES FIRST IN URBAN SHIELD COMPETITON! L to R: Phillip Mastagni, Rinaldo Monterrosa, Bryan Schmidt and Bill Hutto. Star 6 Foundation acts as the benevolent arm of the Sacramento County Deputy Sheriffs Association. SAN JOSE POA GOLF TOURNAMENT Congratulations to Alameda County Sheriffs Office SWAT team for placing first and Sacramento Police Department SWAT for placing second in the 2012 Urban Shield Bay Area competition. Urban Shield is a continuous 24-hour exercise, during which first responders are deployed to and rotated through various training scenarios. L to R: Dan Osier, Darrell Cortez (San Jose Police Dept.), Chaplain Dave Bridgen, John Krallman, Phillip Mastagni benefiting the San Jose Police Department Chaplaincy Program. LAW BULLETIN Page 23