Ass'n of Orange Cnty. Deputy Sheriffs v. Cnty. of Orange

• Decision Date: 12 June 2013
• Docket Number: G047167
• Court: California Court of Appeals Court of Appeals
• Parties: ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

217 Cal.App.4th 29

158 Cal.Rptr.3d 135

ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS, Plaintiff and Appellant,

v.COUNTY OF ORANGE et al., Defendants and Respondents.

G047167

Court of Appeal, Fourth District, Division 3, California.

Filed June 12, 2013

See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 577.

Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Affirmed. (Super.Ct. No. 30–2011–00442746).

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.

OPINION

FYBEL, J.

INTRODUCTION

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, 273 Cal.Rptr. 584, 797 P.2d 608 (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, 47 Cal.Rptr.3d 69, 139 P.3d 532 (Claremont ) and International Assn. of Fire Fighters, Local 188, AFL–CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 120 Cal.Rptr.3d 117, 245 P.3d 845 ( 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.

FACTS

The Department has an internal affairs bureau of its Professional Standards Division.¹ 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.²

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.³ 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, 124 Cal.Rptr. 14, 539 P.2d 774 (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...