Public Sector Case Notes

• Jurisdiction: California,United States
• Citation: Vol. 28 No. 2
• Publication year: 2014
• Author: By Stewart Weinberg & Kerianne Steele
• topic: Contracts,Constitutional Law,Labor Law,Employment Law,Civil Procedure,Public Sector Law

Public Sector Case Notes

By Stewart Weinberg & Kerianne Steele

Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder in Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector. Kerianne Steele also is a shareholder in the firm. She provides general representation to labor unions, primarily in the public sector.

PERSONNEL FILES

Firefighters Have Rights To View and Respond to Adverse Comments in Files Used for Personnel Purposes

Poole v. Orange County Fire Authority, 221 Cal. App. 4th 155 (2013)

The Firefighters Procedural Bill of Rights Act (FBOR) in Cal. Gov't Code § 3255 has language similar to that found in the Public Safety Officers Bill of Rights (POBOR) (Cal. Gov't Code § 3305), and for educators in Cal. Educ. Code § 44031. The FBOR provides in part that, "A firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes . . . without the firefighter having first read and signed the instrument containing the adverse comment . . . ."

Steve Poole's captain maintained a daily log on Poole that contained more than a hundred entries. Many of those entries were for areas in which the captain believed Poole needed to improve. When it came time to prepare Poole's annual review, the captain used the negative entries in that review without Poole having had a chance to read or sign them. Poole and his union filed an action for declaratory relief. The superior court denied relief, concluding that the daily logs were not part of a personnel file and thus not subject to Cal. Gov't Code § 3255. The court of appeal reversed. The court relied on McMahon v. City of Los Angeles, 172 Cal. App. 4th 1324 (2009), pertaining to peace officers, and Miller v. Chico Unified Sch. Dist., 24 Cal. 3d 703 (1979), pertaining to teachers. As noted above, both peace officers and educators have the statutory right to review derogatory material before that material can be placed in a personnel file or used for an adverse action. In Poole's case, the employer admitted that the daily log information was used for personnel purposes. Since the FBOR's purpose was to provide firefighters a right to meaningfully respond to adverse comments that may affect personnel decisions concerning them, that right is frustrated when a supervisor maintains a daily log containing adverse comments that are kept secret from the firefighter.

Other public employees, although not protected by similar statutes, may have similar rights arising out of collective bargaining agreements or local personnel rules.

ARBITRATION

Memorandum of Understanding Did Not Clearly and Unmistakably Waive Right To File Legal Action for Statutory Claim

Voltei v. County of Ventura, 221 Cal. App. 4th 391 (2013)

In 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), the United States Supreme Court held that an employee is limited to arbitration as the exclusive forum for statutory claims if the union "clearly and unmistakably" waives the employee's right to a judicial forum.

In the instant case, an investigator in the Ventura County District Attorney's Office filed a complaint against the county, alleging retaliation, harassment, disability discrimination, and other claims under the Fair Employment and Housing Act (FEHA). Among other defenses, the county filed a petition to compel arbitration of the claims, citing a provision of the memorandum of understanding between the county and the exclusive representative of plaintiff's bargaining unit (the Ventura County Deputy Sheriffs' Association (Association)), which provided that "[a] grievance unresolved in the steps enumerated above may be submitted to...