Cnty. of Sonoma v. Pub. Emp't Relations Bd.
| Decision Date | 23 June 2022 |
| Docket Number | A163100 |
| Parties | COUNTY OF SONOMA, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; Sonoma County Deputy Sheriffs’ Association et al., Real Parties in Interest. |
| Court | California Court of Appeals Court of Appeals |
Liebert Cassidy Whitmore, Richard C. Bolanos, Heather R. Coffman, San Francisco and Marek Pienkos, San Diego for Petitioner.
American Civil Liberties Union Foundation of Northern California, Inc., Allyssa Villanueva, Hayward and Avram Frey; Committee for Law Enforcement Accountability Now as Amici Curiae on behalf of Petitioner.
Jose Felix De La Torre, Wendi L. Ross, Sacramento and Jessica S. Kim for Respondent.
Rains Lucia Stern St. Phalle & Silver, Timothy K. Talbot and Zachery A. Lopes, Pleasant Hill for Real Party in Interest Sonoma County Deputy Sheriffs’ Association.
Mastagni Holstedt, Kathleen N. Mastagni Storm and Taylor Davies-Mahaffey, Sacramento for Real Party in Interest Sonoma County Law Enforcement Association.
The Meyers-Milias-Brown Act (MMBA; Gov. Code, § 3500 et seq. ; undesignated statutory references are to the Government Code) requires public agencies to meet and confer, i.e., bargain, in good faith with recognized employee organizations regarding changes to wages, hours, and other terms and conditions of employment — matters within the scope of the organizations’ representation. ( §§ 3504, 3506.5, subd. (c).) The Sonoma County Deputy Sheriffs’ Association (DSA) and Sonoma County Law Enforcement Association (SCLEA; collectively, Associations) filed unfair practice complaints alleging the County of Sonoma (County) violated the MMBA when its board of supervisors (Board) placed Measure P on the November 2020 ballot. The measure, which the voters ultimately approved, amends the Sonoma County Code (SCC) to enhance the investigative and oversight authority of the County's Independent Office of Law Enforcement Review and Outreach (IOLERO) over the Sonoma County Sheriff-Coroner office (Sheriff). The Associations alleged the Board's decision to place Measure P on the ballot significantly and adversely affected their members’ working conditions, such as discipline and investigation criteria and procedures; thus, the County was required to bargain prior to placement of the measure on the ballot.
The Public Employment Relations Board (PERB), which has jurisdiction over MMBA claims ( City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1287, 211 Cal.Rptr.3d 287 ( Palo Alto )), agreed. It concluded that, before placing the measure on the ballot, the County was required to bargain with the Associations regarding provisions relating to the investigation and discipline of employees. These included provisions granting IOLERO authority to: conduct independent investigations, recommend discipline of employees under investigation, subpoena records or testimony, personally observe Sheriff investigations, and review officer discipline records. (SCC §§ 2-392, subd. (d)(2), 2-394, subds. (b)(3), (b)(4), (b)(5)(ii), (vii)–(ix), (e)(2), and (f).) PERB declared these provisions void and unenforceable against any employees represented by the Associations. The County filed a petition for writ of extraordinary relief, and we granted writ of review. ( § 3509.5 ; Code Civ. Proc., § 1068, subd. (a).)
We conclude PERB failed to consider whether the decision to place certain Measure P provisions on the ballot significantly and adversely affected the working conditions of the Associations’ members. ( Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638, 47 Cal.Rptr.3d 69, 139 P.3d 532 ( Claremont ).) Having omitted that analysis, PERB erred in determining the decision was a matter within the scope of representation under the MMBA and thereby subject to collective bargaining. We further conclude PERB exceeded its authority by issuing a remedial order declaring voter-approved Measure P provisions void and unenforceable. Thus, we annul PERB's finding that the County violated its decisional bargaining obligations; we also annul PERB's remedial order declaring Measure P provisions void and unenforceable. ( § 3509.5, subd. (b) ; Code Civ. Proc., § 1075.) We remand for PERB to strike its remedy and to consider whether the decision to place the identified Measure P provisions on the ballot significantly and adversely affected the working conditions of the Associations’ members. We affirm the remainder of PERB's decision.
In 2016, the Board enacted an ordinance creating IOLERO to provide "objective, independent and appropriate review and audit of law enforcement administrative investigations, which include allegations of misconduct" by the Sheriff. Among other things, the ordinance authorized IOLERO to provide advice and recommendations regarding law enforcement policies and procedures, and to perform independent audits of internal departmental investigations regarding officer use of force incidents, incidents of misconduct, and corrective action taken. IOLERO was also empowered to receive and review citizen complaints and forward them to the Sheriff. (Former SCC, § 2-394, subd. (b)(1).) In addition, IOLERO could "[a]dvise if investigations appear incomplete or otherwise deficient and recommend further review as deemed necessary; when warranted, propose independent recommendations or determinations regarding investigations." (Id. , subd. (b)(4).)
But the ordinance prohibited IOLERO from conducting "its own investigation of complaints against law enforcement personnel," compelling "by subpoena the production of any documents or the attendance and testimony of any witnesses," or deciding "policies, direct[ing] activities, or impos[ing] discipline on other County departments, officers and employees." (Former SCC § 2-394, subds. (c)(1), (3) & (5).) IOLERO also could not "[d]isclose any confidential and/or privileged information to anyone not authorized to receive it." (Id. , subd. (c)(4).) Further, IOLERO and the Sheriff were required to create written protocols further defining and specifying the "scope and process providing for IOLERO's receipt, review and audit of complaints and investigations in a coordinated and cooperative manner." (Id. , subd. (d).) Accordingly, the Sheriff and IOLERO entered into an operational agreement establishing written protocols defining the scope and process of IOLERO's audit of law enforcement complaints and investigations.
In 2020, the Board acknowledged a need to amend IOLERO's policies and practices to enhance law enforcement transparency and accountability. In late July and early August, the Board reviewed proposed changes and considered several methods for amending the ordinance: directing staff to place an initiative on the ballot for voters to consider at the November 3, 2020 election, introducing a proposed initiative as an amendment to the existing IOLERO ordinance, or directly amending to the ordinance. The Board eventually approved for placement on the ballot the language in Measure P.
Measure P proposed numerous modifications to the IOLERO ordinance. It would enable IOLERO to independently investigate whistleblower complaints, deaths of individuals in the custody of the Sheriff or resulting from an officer's actions, or incomplete or otherwise deficient Sheriff investigations of complaints or incidents. IOLERO could "[d]irectly receive all prior complaints for the involved deputy, previous investigation files (including Brady[1 ] investigations) and the record of discipline for each complaint" when reviewing, auditing, and analyzing completed Sheriff investigations.
IOLERO could also directly access, review, and post on IOLERO's public website all body-worn camera videos where force was used, to the extent authorized by the law and with consideration of victim privacy and active investigations. In terms of collecting information, IOLERO could independently subpoena records or testimony and directly access all sources of investigative evidence. IOLERO's director was permitted to personally observe the Sheriff's investigatory interviews. In addition, IOLERO could make disciplinary recommendations, "as appropriate, for officers subject to IOLERO investigations."
Notably, Measure P did not propose to alter the ordinance's prohibition on IOLERO "decid[ing] policies, direct[ing] activities, or impos[ing] discipline on other county departments, officers and employees" or disclosing confidential information. Measure P also would not alter the requirement that IOLERO and the Sheriff create protocols to "further define and specify the scope and process providing for IOLERO's receipt, review, processing, and audit of complaints and investigations in a mutually coordinated and cooperative manner."
On August 6, 2020, the Board passed a resolution calling for a special election to submit Measure P to voters, to consolidate the special election with the general election on November 3, 2020, and to place the measure on that ballot. That same day, the president of SCLEA first learned about the scheduled vote on the measure, and DSA requested the County meet and confer regarding the measure's placement on the ballot. A few days later, SCLEA requested the County immediately cease and desist placing the measure on the ballot or implementing any changes to the IOLERO ordinance. The County did not bargain with the Associations before placing Measure P on the ballot. Instead, on August 11, the County expressed a willingness to bargain with the Associations on the negotiable effects of and legal objections concerning the measure.
Ultimately, the Sonoma County Registrar of Voters placed Measure P on the November 3, 2020 ballot, and it passed by a majority vote.
The Associations, representing officers and other employees working for the Sheriff, filed unfair practice complaints against the County. The Associations alleged the County violated the MMBA by failing to first...
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Public Sector Case Notes
...its analysis in light of the California Court of Appeal's decision months earlier in County of Sonoma v. Pub. Empl. Rels. Bd., 80 Cal. App. 5th 167 (2022), which held that PERB had applied the wrong test to evaluate whether a management decision was subject to bargaining.PERB reviewed sever......