California Appellate Court Rules that County was Required to Meet and Confer with Recognized Bargaining Unit Over the Implementation of New Legislative Changes Under Limited Circumstances

11.27.2024

On November 20, 2024, the California Court of Appeal ruled that the County of Los Angeles (“County”) was required to meet and confer with the Association for Los Angeles Deputy Sheriffs (“ALADS”) prior to proceeding with interviews of 35 individual Los Angeles Sheriff’s Department deputies about their knowledge of, and involvement in law enforcement gangs and to display or provide photographs of alleged gang-associated tattoos.

This case is tangentially related to the County’s adoption of County Ordinance 20-0520, conferring subpoena power on the COC and the County’s Office of Inspector General (OIG) in January of 2020. In July 2020, ALADS filed an unfair practice claim with the Los Angeles County Employee Relation Commission (“ERCOM”) alleging that the County violated Los Angeles County Employee Relations Ordinance (“ERO”)^[1] (L.A. County Code, § 5.04.240) by unilaterally implementing the new ordinance without first meeting and conferring with ALADS over its effects. In November 2022, ERCOM issued its decision that the County had violated the ERO by failing to negotiate the effects of the legislation with ALADS and ordered the County to meet and confer, and noted its “expectation that negotiations will be completed no late than [60] days from their commencement.” Additionally, ERCOM ruled that the deputies were not required to respond to any subpoenas served under the new legislation until the completion of the meet and confer process. The County agreed to meet with ALADS on May 9, 2023 and ALADS sent a draft policy to the County. During the May 9, 2023 meeting, the County rejected ALADS’ proposed policy and did not make a counterproposal, stating that it needed more time to prepare one.

Three days after the aforementioned meet and confer meeting between the County and ALADS, the OIG sent letters on May 12, 2023 to 35 deputies selected based on information gathered from their personnel records, without meeting with or providing notice to ALADS. The letters directed the deputies to appear and answer questions about their knowledge of and involvement in law enforcement gangs, citing newly implemented Penal Code § 13670, which requires law enforcement agencies to maintain policies prohibiting participation in “a law enforcement gang,” and to “cooperate” with investigations into gangs by inspectors general or any other authorized agency as well as Penal Code § 13510.8, which deemed “[p]articipation in a law enforcement gang” as part of the definition of “serious misconduct” for which peace officer certification may be revoked. Additionally, the letters advised the deputies that their failure to cooperate may subject them to disciplinary action, including discharge.

On May 19, 2023, ALADS filed an unfair practice claim with ERCOM and simultaneously sought injunctive relief from the trial court to enjoin the OIG from proceeding with the interviews without first meeting and conferring with the union under the Meyers-Milias-Brown-Act (“MMBA”) and the ERO. ALADS further alleged that the planned interrogations violated the deputies’ Fourth and Fifth Amendment rights.

The County argued that the deputy interviews implicate a fundamental managerial or policy decision. Additionally, the County asserted that the issue is not ripe for bargaining because “there is no evidence in the record as to what th[e] potential discipline could be because the County has not yet made a firm decision.” The County also argued that its “need for unencumbered decision-making in managing its operations through OIG's various investigative channels outweighs any benefit to employer-employee relations that bargaining would provide, even as to implementation of the decision.” The County cited “[t]he fundamental policy decision by the State, as evidenced by the passage of Penal Code section 13670, to remove the widespread evils presented by law enforcement gangs,” which the County likens to “the State's need to avoid unnecessary deadly force.”

The trial court rejected ALADS’ constitutional claims; however, it concluded that the County’s interview directive triggered the meet and confer obligations under the MMBA. The trial court agreed with the County that it was not required to meet and confer over the decision to investigate the deputies. However, the trial court held that these interviews affected discipline so as to trigger the obligation to meet and confer over the effects of that decision under the MMBA and ERO. The trial court reasoned that “[w]hether the manner of the… interviews is a matter subject to bargaining, the consequences of those interviews include the duty to cooperate or face discipline, the discretionary application of discipline and its range, and the referral to POST for possible decertification, all of which are easily the subject of bargaining.” The trial court recognized that “irreparable harm [would result] from the County’s failure to meet and confer” before implementing its interviews. Additionally, the trial court found that there was “no compelling need for immediate investigation,” and concluded that “[t]he balancing of the harms works in favor of a preliminary injunction that will maintain the status quo.”

Accordingly, the trial court enjoined the OIG’s interviews pending the outcome of the unfair labor practice claim or the completion of the meet and confer process, whichever came first.

The County appealed.

The Court of Appeal affirmed the trial court’s ruling. In doing so, it recognized that the County was not required to meet and confer over the adoption of Penal Code § 13670 and the OIG’s decision to conduct an investigation, which is clearly a managerial decision; however, it concluded the County was required to meet and confer over the manner in which the County implements the decision concerning the OIG investigating two alleged law enforcement gangs under Penal Code § 13670 by requiring the deputies to participate in interviews, answer questions under the threat of discipline, concerning their own gang affiliations as well as regarding gang affiliations of their colleagues. The Court of Appeal came to this conclusion by employing the balancing test in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 628 (Claremont), weighing whether the interviews “give rise to a significant and adverse effect on working conditions” against the employer’s need for unencumbered decision-making in managing its operations.

The Court of Appeal determined that “the significant and adverse effects of the OIG’s interviews include whether the statements can be transmitted to POST without violating POBRA’s prohibition on using compelled statements in subsequent civil proceedings, and whether any statements can be transmitted in a report to the District Attorney for inclusion on the Brady list.” Accordingly, it determined that the implementation of interviews raised questions that were much more closely tied to employee-employer relations than to the integrity of the OIG’s investigation—e.g., referral to POST for possible decertification and disciplinary ramifications of failure to identify fellow officers as gang members.

Thus, the Court of Appeal agreed with the trial court that “[t]he County does not have a need for unencumbered decision-making with respect to these consequences,” as the required interviews affected employee discipline and therefore the balance of interests weighed in favor of bargaining and ruling that the County must meet-and-confer with ALADS prior to the implementation of these interviews, which affected employee discipline, and did not “exceed[] the bounds of reason.”

The ALADS ruling reinforces prior PERB rulings that a public employer may be required to meet and confer with a bargaining unit over the effects of the implementation of new legislation. This case has been certified for publication and is citable as controlling authority. However, the County may seek review to the Supreme Court. If you have any questions regarding this alert, please contact the authors of this article or your current Atkinson, Andelson, Loya, Ruud & Romo counsel.

[1] Conforming to the MMBA, the ERO applies to Los Angeles County and makes it “an unfair employee relations practice” for the county to, among other things, “refuse to negotiate with the representatives of certified employee organizations on negotiable matters.” L.A. County Code, tit. 5, ch. 5.04, 5.04.240(A)(3).

Special thanks to AALRR Law Clerk Alexandra Shamash for assisting in preparing this alert.