California Court of Appeals, Fourth District, Third Division
ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS, Plaintiff and Appellant,
COUNTY OF ORANGE et al., Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 30-2011-00442746 Charles Margines, Judge. Affirmed.
Law Offices of James E. Trott and James E. Trott for Plaintiff and Appellant.
Nicholas S. Chrisos, County Counsel, and Leon J. Page, Deputy County Counsel, for Defendants and Respondents.
By Orange County Sheriff Sandra Hutchen’s (the Sheriff) order, effective January 1, 2011, any member of the Orange County Sheriff’s Department (the Department), who is under investigation for misconduct, is no longer permitted access to the Department’s internal affairs investigative file before being interviewed by an internal affairs investigator. The Association of Orange County Deputy Sheriffs (the Association) filed a petition for writ of mandate and sought a preliminary injunction against Orange County (the County), the Department, the Sheriff, and the County’s board of supervisors (collectively, defendants). The Association alleged the Sheriff’s order violated the meet and confer requirements of the Meyers Milias Brown Act (MMBA) (Gov. Code, § 3500 et seq.) and constituted a breach of the Association’s applicable memorandum of understanding with the County (the MOU). (All further statutory references are to the Government Code unless otherwise specified.) The trial court denied the Association’s request for a preliminary injunction and petition for writ of mandate.
We affirm. We hold the Sheriff’s order delaying access to the internal affairs investigative files until after the investigative interview was within her legal authority and not subject to meet and confer requirements. Our holding applies the analysis of our Supreme Court in Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564 (Pasadena). We also address a question the California Supreme Court expressly did not reach in Pasadena, and hold a long standing past practice of preinvestigative interview access to the investigative file, alone, does not constitute a working condition within the meaning of the MMBA.
The trial court properly applied the test for determining whether an issue falls within the scope of representation under the MMBA as set forth by our Supreme Court in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 (Claremont) and International Assn. of Fire Fighters, Local 188, AFL CIO v. Public Employment Relations Bd. (2011)51 Cal.4th 259 (International Assn. of Fire Fighters). For the reasons we will explain, the Sheriff’s order did not significantly or adversely affect wages, hours, or other terms and conditions of employment within the meaning of the MMBA. Even if it did, the Sheriff’s order fell outside the scope of representation because it was a fundamental managerial or policy decision that was not outweighed by the benefit to employer employee relations that would result from bargaining about the decision. The Sheriff’s order did not violate any express or implied term of the MOU.
The Department has an internal affairs bureau of its Professional Standards Division. For “many years, ” the Department allowed deputies, investigators, and sergeants, who were under investigation for misconduct and possibly subject to discipline (principals), “complete access” to the Department’s internal affairs investigative files before submitting to an investigative interview by internal affairs investigators.
The investigative files include memoranda written by managers and supervisors; witness statements gathered by an internal affairs investigator; transcripts of interviews with other employees; and, when available, physical evidence including video footage. Before the Sheriff’s order became effective, a principal was permitted to spend as much time “as needed” to review the investigative file, and might spend several hours, if not days, reviewing the file. A principal was also allowed to review the contents of the investigative file with his or her attorney or union representative, and to make personal notes of the contents.
In her declaration, the Department’s Captain Linda Solorza stated the Department’s practice of providing preinvestigative interview access to the investigative file interfered with the internal affairs bureau’s ability “to conduct prompt, thorough, and fair investigations into peace officer misconduct.” Evidence showed the preinvestigative interview access practice did not promote truthseeking and was inconsistent with techniques employed by the Department in other kinds of investigatory interviews. According to Solorza, providing such access threatened to color the principal’s recollection of events or “lead that person to conform his or her version of an event to that given by witnesses already questioned.”
In his declaration, the Department’s Lieutenant Jeffrey Hallock, who had served as a sergeant in the Professional Standards Division, stated the Department’s practice created the temptation for a principal or witness “to conform his or her statements to the statements of others to either protect the witness’s colleagues, or to protect himself or herself.” Solorza added in her declaration: “[I]f the principal under investigation does not know the sum total of what the Internal Affairs investigator knows, the principal will have more reason to be truthful and forthright when responding to the investigator’s questions. This would also be the case in interviews with witnesses. Witnesses are more often truthful and forthright when they know that the principal will not have access to the witness’s interview prior to the principal’s own interview. When the principal does not know what the interviewing Investigator knows, the Investigator is also better positioned to assess the principal’s credibility.”
Solorza also stated the preinvestigative interview access practice had a “chilling” effect on witnesses. For example, in one sexual harassment case, the victims and witnesses of the alleged misconduct expressed concern about the disclosure of their statements to the principal (while the investigation was still pending) because they feared retaliation before the Department could take appropriate remedial action to address any misconduct.
Solorza further stated in her declaration the Department’s practice particularly hindered investigations that involved more than one principal. For example, if one principal abruptly resigned after reviewing his or her investigative file but before his or her investigative interview, the Professional Standards Division would be unable to compel that principal to provide a statement regarding the conduct of the other principals under investigation. The completion of such investigations was delayed by principals seeking to review other principals’ investigative interviews before submitting to their own interviews.
The Sheriff described the Department at the time of her appointment in 2008 as “reeling from a lack of accountability, transparency, and leadership.” Her predecessor was under investigation for witness tampering and related corruption charges. The Department was also dealing with the murder of a jail inmate and allegations that “jail deputies relied on ‘shot callers’ to control other inmates in the county jails.” The Sheriff pledged to the public that she “would restore accountability, openness, trust, and transparency to the operations of the Sheriff’s Department.”
In December 2010, the Sheriff decided to reform the manner in which internal affairs investigations of principals were conducted. She concluded a policy change was “absolutely necessary to ensure the integrity and reliability of future internal affairs investigations” and to bring the Department in line with what is considered to be the “best practice” in conducting internal affairs investigations.
On December 28, 2010, the Sheriff ordered, by executive command, that effective January 1, 2011, the Professional Standards Division would stop providing all principals with preinvestigative interview access to the investigative files. The change in practice was not made in response to any specific instance of misconduct, but was made “in order to improve the reliability and integrity of the Department’s internal affairs investigations.” For cases investigating misconduct, which were initiated before January 1, 2011, the Department continued to provide preinvestigative interview access to the investigative file.
In her declaration, Solorza stated: “[A]s required by the Public Safety Officer’s Procedural Bill of Rights Act and also by the Skelly decision (Skelly v. State Personnel Board, 15 Cal.3d 194 (1975)) when discipline is proposed, a peace officer is provided with a copy of all the materials (including all investigative files) on which the decision to impose discipline is being based. However, as a result of the Sheriff’s policy decision, the investigative materials are now provided to the peace officer only when discipline is proposed, instead of prior to the employee’s investigative interview.”
The change in practice did not alter or otherwise affect the Department’s standards of conduct or ethical canons; the Department’s employees were already prohibited from making a false statement to superiors and other employees. The MOU did not address the issue, much less state, that the Department would provide any principal with preinvestigative interview access to the investigative file.
The Association immediately objected to the Sheriff’s order and asserted that withdrawal of preinvestigative interview access to the investigative file was a mandatory item of bargaining, subject to the meet and confer process of the MMBA. The Sheriff responded that the change in the Department’s practice, implemented by her order, “is not a subject that requires negotiation.”
The Association Files a Petition for Writ of Mandate Against Defendants.
In January 2011, the Association filed a petition for writ of mandate under Code of Civil Procedure section 1085 (the petition) against defendants to enforce its collective bargaining rights under the MMBA and the MOU. The petition alleged defendants have a “ministerial duty” to follow the law with regard to public employer employee relations and failed to do so because they unilaterally implemented a change in working conditions by “no longer following the long standing practice of providing investigative materials for review prior to Internal Affairs interrogation, without meeting and conferring as required by law.” The petition further alleged defendants’ conduct also violated the so called “zipper clause” contained in article XXIII of the MOU, which required the parties’ mutual agreement to negotiate “any subject matter covered herein or with respect to any other matter with[in] the scope of representation” during the MOU’s term.
The petition sought issuance of a peremptory writ of mandate commanding defendants “not to change the Internal Affairs investigation process as it pertains to the provision of all investigative materials to members of the bargaining unit represented by [the Association] prior to such members being interrogated in connection with a Personnel Investigation, or other investigation of alleged misconduct, by employees of [the Department], absent agreement to do so reached as part of the collective bargaining process for a successor agreement to the current Memorandum of Understanding which expires on October 4, 2012, and to take no actions to unilaterally implement any change in that practice until such time.”
The Trial Court Denies the Association’s Request for a Preliminary Injunction.
In January 2011, the Association filed an ex parte application requesting an order to show cause regarding the issuance of a preliminary and permanent injunction, and a temporary restraining order. The Association sought to enjoin defendants from withdrawing the Department’s practice of providing preinvestigative interview access to the investigative file until agreement to do so is reached as part of the collective bargaining process. The Association asserted it “will be irreparably damaged if the obligation to refrain from implementing unilateral changes in working conditions is not enforced by this Court in that the [Association]’s collective bargaining rights under the [MMBA] [citation] will have been negated and the terms of the current Memorandum of Understanding will be rendered null and void.” As in the petition, the Association further asserted the zipper clause of the MOU contained in article XXIII provides that during the term of the MOU, the parties may meet and confer on issues within the scope of representation only if they mutually agree to do so.
The trial court denied the Association’s request for a preliminary injunction on the grounds the Association failed to demonstrate a likelihood of prevailing on the merits of the ...