Back by Popular Demand...
Over the course of the last year, many of you have strongly encouraged me to bring back the Newsletter. So, I have! I hope you find the updates on current legal developments, news stories, and other relevant information useful. As always, please feel free to print, post, distribute and/or forward the newsletter as you see fit. -Alison
This Newsletter is for general information purposes only. Action should not be taken on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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 Ellins v. City of Sierra Madre
710 F.3d 1049 (9th Cir. 2013)
Public employees have a difficult terrain to traverse in asserting First Amendment protection for speaking out about working conditions. One reason is that individual grievances are not traditionally considered protected speech because those involve a matter of private (not public) concern. A recent 9th Circuit decision provided much needed relief for those public employee union officials advocating collective grievances on behalf of their membership.
In Ellins v. City of Sierra Madre, the Ninth Circuit held that: (1) a police association president who lead a no-confidence vote against the Chief of Police was involved in a matter of public concern; (2) a jury could reasonably conclude that plaintiff's union activities and related speech were undertaken in his capacity as a private citizen not as a public employee; (3) the delay in plaintiff's pay increase constituted an adverse employment action; (4) plaintiff's speech was a substantial or motivating factor for the delay; and (5) the Chief of Police was not entitled to qualified immunity for causing the delay. Read the full decision |
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SF Fire Commission Findings Vacated
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 Termination of EMT Overturned
The Emergency Medical Technician alone in the back of the ambulance yelled for the paramedic to pull over because he needed help controlling the volatile and combative homeless man being transported. Within seconds of the ambulance stopping, two San Francisco Police Officers who had heard the EMT's screams for help jumped into the back of the ambulance and found that the patient had already freed his legs and upper body from the restraints, and was violently kicking and screaming. The paramedic also ran around from the driver's seat to help. It took all four of them to re-secure the homeless man so that the ambulance could continue to the hospital. While the fight in the back of the ambulance only took seconds, its effects on the EMT lasted for years as he fought against the baseless allegations of excessive force asserted by his paramedic partner. At the hospital, the homeless man was photographed with a swollen, bloody black eye that the paramedic claimed was caused by the EMT inflicting multiple fist blows upon the patient in the ambulance before he broke free from the restraints. The paramedic claimed she saw those blows in the rear view mirror. Accepting the paramedic's claim at face value, the San Francisco Fire Commission approved the termination. The EMT then retained the services of the Berry Wilkinson Law Group given our considerable experience handling termination appeals. Following a hearing before San Francisco Superior Court Judge A. James Robertson, the termination order was vacated. To read the Superior Court decision in full, click here. Judge Robertson concluded that the eye injury was caused prior to the patient being placed in the ambulance by the force used by the two police officers who arrested the homeless man, and that what the paramedic observed in the rear view mirror were not blows, but the effort to restrain the homeless man after he broke free from the straps. (Read more...) |
 Two recent court decisions help clarify the statute of limitations contained in Government Code section 3304(d), which generally states, subject to several exceptions, that no punitive action may be undertaken if the investigation is not completed within one year of the agency's discovery of an act, omission or other misconduct.
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In Richardson v. City and County of San Francisco Police Commission, 214 Cal. App. 4th 671 (2013), the court addressed the exception to the statute of limitations contained at Government Code section 3304(d)(2)(A), which tolls the one-year period "[i]f the act, omission, or other allegation of misconduct is also the subject of a criminal investigation." In that case, the Police Department's Special Investigations Division opened a criminal investigation into alleged check fraud and alleged unauthorized use of the California Law Enforcement Telecommunication System (CLETS), but then closed that case 53 days later. The court held that the statute does not require that there be an actual and active criminal investigation for the tolling to apply; rather, the statute simply requires that the investigation be "pending."
In California Department of Corrections and Rehabilitation v. State Personnel Board (Moya), 215 Cal. App. 4th 1101 (2013), the court held that the exception in Government Code section 3304(d)(2)(H) means that the one-year period does not apply at all to allegations of workers compensation fraud, and left standing a discipline that was noticed two years after the investigation began.
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Reserve Officer Rights Limited
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Reserve officers have long been afforded lesser rights than their full-time equivalents. For example, reserves officers are not covered by the Public Safety Officers' Procedural Bill of Rights Act (POBR). See, Government Code section 3301.
The recent decision in Estrada v. City of Los Angeles (July 24, 2013) held that voluntary reserve officers are also not entitled to the rights under the Fair Employment and Housing Act (FEHA) even though the City deemed the reserve officers to be "employees" for the purpose of receiving workers' compensation benefits. As a result, the reserve could not maintain a cause of action against the city for disability discrimination.
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Congratulations BWLG associate attorney Jeff Martin, whose qualifications as both a Taser and Force Science expert provided much needed assistance during the termination appeal for two New Orleans Police Officers. Read the New Orleans Times-Picayune article here: NOPD Taser Case Tests Difference Between Lying and Faulty Memory
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Collective Bargaining
Earlier this year, the Public Employment Relations Board held a hearing on the complaint filed by the San Luis Obispo Police Officers Association over two City-sponsored ballot initiatives that repealed the Charter provisions on binding arbitration and how employee pensions are negotiated. The Association was represented by Alison Berry Wilkinson during the unfair labor practice charge proceedings. To read the one of the many articles about the dispute that were published in the San Luis Obispo Tribune: click here.
The ballot measure stems from the 2008 success achieved during interest arbitration by the Association with the assistance of the Berry Wilkinson Law Group, resulting in police employee raises in the range of 26 to 37 percent.
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