Public Sector Case Notes

• Publication year: 2021
• Author: By Kerianne Steel and Alejandro Delgado

Public Sector Case Notes

By Kerianne Steel and Alejandro Delgado

Kerianne Steele is a partner with Weinberg, Roger & Rosenfeld, where she represents unions and employees, primarily in the public sector. Alejandro Delgado is a shareholder of the Los Angeles office of Weinberg, Roger & Rosenfeld. He represents and advises public sector unions in all aspects of labor and employment law.

U.S. SUPREME COURT

AGENCY FEE LITIGATION JANUS UPDATE

On January 25, 2021, the U.S. Supreme Court denied certiorari in a bloc of cases in which public employees sought to recover the agency fees that public sector unions had collected prior to the Court's 2018 Janus decision (Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018)) (Janus I). In Janus I, the Supreme Court barred the collection of agency fees or "fair share" fees, which were fees that unions collected from non-members to cover the costs of collective bargaining, contract administration, and grievance adjustment. The bloc of cases that the Court declined to review included Janus v. AFSCME, 942 F. 3d 352 (7th Cir. 2019) cert. den. (US Jan. 21, 2021) (No. 19-1104) (Janus II), which is the follow-up case to Janus I. Though not a ruling on the merits, the Court's denial of certiorari is consistent with the decisions of lower courts, which have rejected lawsuits brought by plaintiffs claiming that unions must reimburse the fees they collected before Janus I was decided.

CALIFORNIA COURT OF APPEAL CASES

STATE PERSONNEL BOARD AFTER AN ADVERSE ACTION BECOMES FINAL BECAUSE THE EMPLOYEE DOES NOT APPEAL IT, THE EMPLOYER CANNOT WITHDRAW IT.

Chaplin v. State Personnel Board, 54 Cal. App. 5th 1104 (2020)

California Department of Forestry and Fire Protection (CAL FIRE) disciplined three employees for cheating on a promotional examination. One of the employees appealed his discipline to the California State Personnel Board (Board or SPB) while the other two did not. While the one appeal was pending, CAL FIRE issued new disciplinary notices to all three employees imposing harsher penalties. Over the employees' objection, the Board allowed CAL FIRE to proceed. The employees filed a petition for writ of administrative mandamus in superior court alleging that the Board was prohibited from imposing harsher penalties against them after they were disciplined for misconduct. The superior court denied the petition. The employees appealed.

The Court of Appeal, First Appellate District, held: (1) de novo review applied; (2) as a matter of first impression, an employer is not permitted to withdraw notices of adverse action that become final when employees do not appeal the discipline; and (3) an employer is permitted to withdraw a notice of adverse action when an employee appeals the discipline.

The Court held that the question of whether the Board's decision was contrary to civil service statutes is a legal question subject to de novo review. The Court reasoned that, although the Board is constitutionally vested with the authority to review civil services statutes, it was unclear that the California Supreme Court would apply the "hybrid approach" from Boling v. Public Employment Relations Board, 5 Cal. 5th 898 (2018) to the SPB. More important, the Court stated that it was skeptical the Board relied on any "specialized administrative expertise" in resolving the issue of whether to allow new discipline for misconduct that was already disciplined in a final prior action.

The Court also held that the notices of adverse action that became final were not subject to withdrawal. The Court agreed with the firefighters that once a disciplinary action becomes final, the employer is prohibited from withdrawing it and initiating a new adverse action. The Court reasoned that the plain language of Government Code section 19575 "could not be clearer" in stating that that an appointing power's discipline is final where no appeal is taken within 30 calendar days. The Court found that because the previous adverse actions had become final under...