Court: Access To IA File Before Interview Not Within Scope

Orange County Deputy Sheriffs v. County of Orange (Court of Appeal Case No. G047167) (Issued on 6/12/13)

The Orange County Sheriff’s Department (Department) had a past practice of allowing an officer under investigation to view the Department’s internal affairs (IA) file before his or her interview by an investigator. Asserting that this practice hindered investigations and was inconsistent with best practices, the Department unilaterally stopped the practice. The union representing deputy sheriffs then brought this unfair practice charge in superior court.

In its decision, the court held that the Department’s order delaying access to the IA files until after the investigative interview was within its legal authority and not subject to the “meet and confer” requirements of the MMBA. The court noted that its decision addressed a question left unanswered by the Supreme Court in Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564. That issue is whether a long-standing past practice constitutes a working condition within the meaning of the MMBA. The court held that it does not unless that past practice significantly affects wages, hours, or working conditions.

Comments:

It terms of its legal holding, this decision is not a surprise. The issue addressed by the Court is whether changing a past practice triggers the meet and confer obligation under the MMBA. The Court held that it does not unless the past practice significantly affects wages, hours, or working conditions. In labor parlance, the Court held that a change in past practice is not subject to meet and confer unless the past practice involves an issue within the scope of bargaining. That has always been the rule under PERB precedent. So this decision really shouldn’t surprise labor practitioners.
However, I found the decision fascinating for another reason. I think this case illustrates how the balancing test under Claremont can evolve as public policy concerns change over time. In other words, under the Claremont balancing test, an issue that was found to be within scope in the past might not be found within scope today because of public policy concerns. In my opinion, this case is such an example.
One of the cases cited in the decision is Long Beach Police Officer Assn. v. City of Long Beach (1984) 156 Cal.App.3d 996. In Long Beach, the court held that a past practice of allowing officers involved in a shooting to consult with an attorney or representative prior to making a report was a matter within the scope of bargaining under the MMBA. The court in Long Beach characterized the competing interests as follows: “On the other hand, the practice in question is directed at an act of force which has already occurred. The difference in timing of the act of force is crucial. Public safety is no longer directly at issue after an incident has occurred. The main thrust of appellants’ contention is that the Department and the public have the right to know the true circumstances of the incident without the possible taint from the advice of others. The public policy question is whether the officers’ rights are superior to the right of the Department and the public to know the so-called ‘true’ circumstances of the incident.” The court eventually concluded that the public’s right to know did not outweigh the benefits of collective bargaining. The court in Long Beach also acknowledged that, “Although appellants correctly urge that the situation is ripe for potential abuse, we cannot presume that abuse will occur.”
If you apply the reasoning in Long Beach to the facts here, there is a strong argument that you would conclude that the Department’s past practice is within the scope of bargaining. But in the area of police accountability, a lot has changed since 1984 when the Long Beach case was issued. The Rodney King beating in 1991 fundamentally changed public perceptions. That incident gave rise to the Christopher Commission. One of the major reforms recommended by the Christopher Commission was the creation of the Office of the Inspector General for the LAPD. The State of California now also has an Office of the Inspector General to safeguard the state’s correctional system. So in 1984, police accountability was not a huge public concern. It sure is today.
Given what has happened since 1984, I’m not sure a court today would reach the same decision as the court in Long Beach. Indeed, I would argue that this decision suggests that the Long Beach decision is out-of-synch with public policy. I think this court gave a lot more consideration to the right of “the public to know the so-called ‘true’ circumstances of the incident” than did the court in Long Beach. And I think that’s a good thing.