Friday, September 26, 2008
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Court Upholds LASD Policy on Consultation With Lawyers
By SHERRI M. OKAMOTO, Staff Writer
A law enforcement agency can revise its departmental policy to restrict officers involved in a shooting from collectively consulting with counsel or labor representatives prior to an initial interrogation regarding the incident, without undergoing the meet-and-confer process with the officer’s collective bargaining representative, this district’s Court of Appeal has held.
In an opinion published Wednesday, Div. Eight upheld Los Angeles Superior Court Judge Dzintra I. Janavs’ denial of injunctive relief preventing the sheriff’s department from effecting the revised anti-huddling policy. Janavs has retired since ruling in the case.
The sheriff’s department notified the Association for Los Angeles Deputy Sheriffs of a proposed series of revisions to the department’s policy manual governing deputy-involved shootings in June 2006.
It explained the reason for the revisions was to ensure the fact-gathering process following an officer-involved shooting would be undertaken promptly and with investigatory integrity.
Over the next three months, association representatives discussed the proposed revisions with the department.
After the association filed a “Notice of Impasse” with the Los Angeles County Employee Relations Commission requesting the appointment of a mediator to oversee further negotiations, the department advised the association that the department was implementing the revised policies.
The policies provided in part that officers who were involved in a shooting “shall not consult with legal counsel and or labor representatives collectively or in groups (e.g., two or more members consulting at the same time with the same legal counsel/labor representative)” prior to meeting with department investigators.
Shortly thereafter, the association filed a complaint seeking to enjoin the department from implementing the revised policy. The association alleged that the revised policy violated the Public Safety Officers Procedural Bills of Rights Act, Meyers-Milias-Brown Act, and the state and federal constitutions. The department defended the policy revision as a valid workplace regulation.
Janavs denied the association’s motion for a preliminary injunction, and later denied reconsideration.
Writing for the appellate court, Justice Patricia A. Bigelow declined to address the association’s claims of error connected with its motion for reconsideration, adhering to the prevailing view that a denial of a motion for reconsideration is not appealable.
She construed the policy revision as only prohibiting a group of deputies from meeting with the same lawyer at the same time, reasoning that nothing in the policy prevents the same lawyer, or different lawyers from the same law firm, from meeting individually with many different deputies, and nothing forbids officers from engaging collective representation in any administrative or criminal proceeding after the initial interrogation.
Relying on Upland Police Officers Association v. City of Upland (2003) 111 Cal.App.4th 1294 and Long Beach Police Officer Association. v.City of Long Beach (1984) 156 Cal.App.3d 996, Bigelow explained that the Public Safety Officers Procedural Bills of Rights Act permits law enforcement agencies to impose “reasonable” limits on a police officer’s right to consult with counsel in connection with an official interrogation, and that there was no constitutional “‘right to huddle.’”
She concluded the department’s policy revision was not unreasonable and that the trial court did not abuse its discretion in finding it unlikely that the association would have prevailed at trial on these claims. “
Bigelow also agreed with the trial court’s finding that the department was not required to meet and confer with the association under the Meyers-Milias-Brown Act because there was no evidence on the record that the anti-huddling policy revision would have a significant and adverse effect on the deputies’ working conditions, wages or hours.
The parties’ memorandum of understanding did not define “working conditions” as including “consistent and established practices,” even if the right of deputies to huddle were an consistent and established practice as the association alleged, Bigelow wrote.
Nonetheless, she engaged in a balancing test, weighing the department’s interest in public accountability with the deputies “tenuous” working condition claim, and concluded the department’s need for unencumbered decision-making in managing its operations outweighed the benefit to employer-employee relations from bargaining and thus, its decision to implement the policy revision was outside the meet-and-confer requirements of the act.
The “bottom line,” she wrote, was that the association “may or may not prevail” at trial, but that she could not say the trial court was required to issue injunctive relief as a matter of law.
“If an individual deputy can show that he or she was harmed, or is being harmed, or will be harmed, by some violation of his or her statutory or constitutional rights, then that is a matter for another day, and another case,” she concluded.
Presiding Justice Candace Cooper and Justice Madeleine Flier joined Bigelow in her opinion.
Richard A. Shinee and Helen L. Schwab of Green & Shinee represented the association. They could not be reached for comment.
Deputy County Counsel Christopher Keosian represented the sheriff’s department along with Richard M. Kreisler and Max S. Sank of Liebert Cassidy Whitmore.
Kreisler said his client “considers this to be a critical case in that it allows an additional tool to assure the public that a most thorough and accurate investigation is being undertaken in critical officer-involved incidents.”
He opined that this case “opens the door in a narrow set of circumstances” to forego the meet-and-confer process, which “can take months, sometimes even years to complete,” suggesting that the opinion “recognized that circumstances can and do exist where policies of this importance do not have to be delayed while negotiations go on,” to prevent the “frustration of a public purpose.”
The case is Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 08 S.O.S. 5492.
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