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MASTAGNI LAW BULLETIN
Fall 2012
INSIDE THIS
ISSUE:
Local 522
Prevails Over
Staffing
Violations
2
Tulare Deputy
Exonerated
3
Social Media:
Legal Rights and
Responsibilities
of Public Safety
Agencies &
Employees
6
Congratulations
Mastagni Super
Lawyers &
Rising Stars
7
Governor Brown
Rolls Back Public
Pension Benefits
9
Sacramento
Police Officer
Receives
$300,000 in
Back Pay
10
“Honoring the
Heroism of First
Responders”
12
President Profile
13
PERB, NLRB
Protect
Employees’ Free
Speech Rights
15
Mastagni Law
Wins Sick Leave
Grievance
16
2012 Legislative
Updates
18
Welcome New
Clients!
20
Welcome New
Attorneys!
21
Mastagni Special
Events
22
TERMINATION OVERTURNED: LAKE COUNTY DEPUTY
REINSTATED, FULL BACK PAY PLUS INTEREST
By Sean D. Currin
Thanks to the support from the Lake County
Deputy Sheriff’s Association and PORAC
Legal Defense Fund, Deputy Tom Andrews
was
vindicated
of
any
wrongdoing
concerning allegations of dishonesty.
Arbitrator John Wormuth determined the
Sheriff’s Department lacked just cause in
terminating
Deputy
Andrews
from
employment. Further, the Lake County
Board of Supervisors unanimously upheld
the arbitrator’s decision calling for Deputy
Tom Andrews to be immediately reinstated
with full back pay, plus benefits and interest.
Once again, Sheriff Rivero was determined to
have overstepped his authority by unlawfully
terminating another Sheriff’s employee.
Deputy Andrews Severely Injures His
Back While On Duty
Tom Andrews is a Detective with the Lake
County Sheriff’s Department with over 20
years on the force when his career was
jeopardized by unfair and meritless
allegations of dishonesty by Lake County
Sheriff, Sheriff Rivero. In January of 2011,
Deputy Andrews responded to the Middle
Creek area of Lake County to investigate a
suspicious death surrounding a body in a
creek. When the mortuary came to collect
the body they showed up with two people,
one of whom was eight months pregnant at
the time. Deputy Andrews believed she
should not be lifting a heavy body from a
creek in her condition, and assisted the other
mortician with the removal. Unfortunately,
Deputy Andrews significantly injured his
back in the removal of the body from the
creek. Deputy Andrews filed a legitimate workers’
compensation claim based on his injury and began his
road to recovery.
Sheriff Accuses Deputy Andrews of Fraud and
Opens an Internal Affairs Investigation
Shortly after filing the workers’ compensation claim, Lt.
Martin of the Sheriff’s Office heard Sheriff Rivero saying
that he thought filing the claim was ‘bulls--t’ and that
Deputy Andrews timed his claim because he did not want
to work for him and that he wanted to work for the old
sheriff. Though Deputy Andrews was an outspoken
(continued on page 4)
CONGRATULATIONS TO
MASTAGNI LAW’S SUPER
LAWYERS & RISING STARS!
Five attorneys from Mastagni, Holstedt, Amick, Miller
& Johnsen were selected as 2012 Northern California
Super Lawyers and Rising Stars. Each candidate is
evaluated on twelve indicators of peer recognition and
professional achievement. (see story on p. 7.)
1912 I Street Sacramento, CA 95811 ● Phone: 916.446.4692 ● Fax: 916.447.4614 ● www.mastagni.com
Mastagni, Holstedt, Amick, Miller & Johnsen
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SACRAMENTO AREA FIREFIGHTERS, LOCAL 522 PREVAILS OVER THE
COUNTY OF SACRAMENTO FOR OVERTIME STAFFING VIOLATIONS
reduced staffing levels lead to overtime, so the Union and
County accounted for that in their MOU.
By Kathleen Mastagni Storm
On July 23, 2012, arbitrator Jerilou Cossack issued an
opinion and an award in favor of Sacramento Area Fire
Fighters, Local 522, ruling the County of Sacramento violated
both the Memorandum of Understanding (MOU) and
Standard Operating Procedures (SOP) by assigning
administrative captains to the first eight hours of vacant
24-hour firefighter shifts. The County now will be required
to fill vacant firefighter positions with other firefighters first
according to the MOU and SOP protocol, and to pay the
overtime rate for the entire shift.
Firefighters are unusual among public service employees in
the way their shifts are assigned. Where most civil servants
work 40 hours per week, firefighters in Sacramento County
work 56-hour weeks on 24-hour rotations. This schedule and
The MOU explicitly states that when there is a firefighter
position vacancy, “all hours worked” by the replacement will
be “charged as overtime.” To ensure all firefighters in the
unit have equal access to the overtime, and to control fatigue,
the MOU provides, “overtime shall be distributed fairly
among employees insofar as circumstances permit.” The
Department’s scheduling software, Telestaff, is supposed to
manage the fair distribution, offering overtime off a list
organized by rank. If there is a firefighter vacancy, the staff
goes through all available firefighters first.
Around March of 2011, then Acting Fire Chief John
Conneally of the Sacramento County Fire Department began
(continued on page 8)
About the Law Firm
Year Established
Contributors
Mastagni, Holstedt, Amick, Miller &
Johnsen is listed in the Martindale-Hubbell
Bar Register of Preeminent Lawyers and
carries the “AV” rating in the MartindaleHubbell Law Directory. The “A” signifies
the highest level of legal ability, while the
“V” denotes “very high” adherence to the
professional standards of conduct, ethics,
reliability, and diligence.
1976
Sean D. Currin
Jeffrey R.A. Edwards
Sean D. Howell
Michael W. Jarvis
David E. Mastagni
Kathleen N. Mastagni Storm
Stuart K. Tubis
Steven W. Welty
Kyle A. Wende
In 2012, David P. Mastagni and John R.
Holstedt were named “Northern California
Super Lawyers.” David E. Mastagni, John
P. Tribuiano III and Phillip R.A. Mastagni
were named a “Rising Star.” The firm was
also ranked fifth in Sacramento law firms by
the Sacramento Business Journal.
Practice Areas
Labor & Employment Law
Public Employee Discipline
Fair Labor Standards Act
Civil Litigation & Personal Injury
Workers’ Compensation
Labor Negotiations
Disability Retirement
Social Security
Peace Officer Criminal Defense
Production Coordinator
Nicole L. Silverman
Bulletin Editors
Angela M. Mastagni
Kathleen N. Mastagni Storm
Christopher W. Miller
Christina J. Petricca
The Mastagni Law Bulletin is prepared for the general information of our clients and friends. The summaries of recent court opinions and other legal developments
may be pertinent to you or your association. Please be aware this bulletin is not necessarily inclusive of all the legal authority you should consider when making your
decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal
advice on the application and interpretation of this information to any particular matter.
Page 2
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TULARE COUNTY DEPUTY CHARGED WITH USING
EXCESSIVE FORCE EXONERATED
By Sean D. Howell
On October 21, 2011, while working intake in the Tulare
County jail, Deputy Robert Carter made a split-second
decision to act to eliminate a threat of harm to him and other
deputies. As other inmates exiting a cell tried to divert his
attention, Deputy Carter performed a take-down using a leg
sweep when an inmate refused commands to face a wall and
turned on Deputy Carter. The inmate sustained a cut to his
face upon making contact with the concrete floor, causing the
sheriff’s administration to take the position Carter had used
excessive force.
Deputy Carter was working in intake when he received a call
from dispatch that patrol deputies were en route with a
subject arrested for public intoxication who was so combative
the deputies placed him in leg restraints. An update was
provided to Deputy Carter detailing the addition of an assault
with a deadly weapon charge because of the inmate’s conduct
while in transport to the jail. While cuffed behind his back
and leg shackled, the inmate kicked another subject seated in
the patrol car in the head.
Upon arrival at the jail, the inmate was passively resisting.
He was leaning against the deputies as they attempted to
walk him into the booking area. The inmate then threatened
to assault the deputies as he was being walked into the
hallway of the intake area. Based on his behavior and threats,
the deputies decided to place him in a cell by himself until he
was no longer a threat to the deputies or other inmates.
While waiting to clear a cell for the inmate, Deputy Carter
ordered him to face the wall numerous times. In the video of
the event, the inmate can be seen attempting to take the
position of advantage away from Deputy Carter by turning
his head around to see where Carter was standing and where
he was looking.
While Deputy Carter had turned slightly to keep an eye on
the inmates behind him exiting the cell, he saw this inmate
turn his entire body toward him. Fearing attack, Deputy
Carter obtained a firm grasp of the inmate, forced him into
the wall and then swept his legs with his own, taking the
inmate to the ground. Deputy Carter broke part of the
inmate’s contact with the floor by using his own leg, but was
unable to keep his face from striking the concrete.
Tulare County’s Misapplication of the Standard of
Review for Use of Force
The department proposed an 80-hour suspension alleging
excessive use of force. At the Skelly hearing, the hearing
officer argued performing a leg sweep on an inmate who was
leg shackled and cuffed behind his back is an excessive use of
force under any circumstances. At the hearing, a county
witness testified the department holds its employees to a
“higher standard” of review on use of force cases then the
standard enunciated in Graham v. Connor or its own use of
force policy. The captain stated deputies are only permitted
to use the amount of force necessary to overcome the
resistance.
Use of Force Expert Explains Appropriate Standard
While this may sound correct, the department made a crucial
mistake. Peace officers are not limited to using only the force
necessary, but are permitted to use any force, provided it is
reasonable under the circumstances and conditions. Use of
force expert “Rocky” Warren of Warren Consulting was able
to educate the hearing authority and explain the fallacy in the
department’s “higher standard.” He explained that on a scale
of one to ten, one being minimal force and ten being deadly
(continued on page 16)
GIANTS LAW ENFORCEMENT
APPRECIATION NIGHT
L-R: Mastagni attorneys Ian M. Roche, Phillip
R.A. Mastagni, and law clerk Stryder Morissette
support local law enforcement at AT&T Park.
Mastagni Law Office celebrated the 8th Annual
Law Enforcement Appreciation Night with the San
Francisco Giants at AT&T Park. Partial ticket
proceeds benefited the Bay Area Law Enforcement
Assistance Fund and the California Peace Officers
Memorial Foundation.
LAW BULLETIN
Page 3
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EXONERATED LAKE COUNTY DEPUTY (Cont’d)
(continued from page 1)
supporter of the former sheriff, Sheriff Rivero unjustly made
the assumption that Deputy Andrews engaged in workers’
compensation fraud.
While Deputy Andrews was on temporary disability, Sheriff
Rivero allegedly received a phone call from a known criminal
and supporter of the sheriff, Tom Carter. Mr. Carter allegedly
told Sheriff Rivero that Mr. Andrews had been bragging he
was out on disability and that he was out on disability
because he did not like the Sheriff. This informant was
inexplicably kept from internal affairs investigator Captain
Howe by Sheriff Rivero, and nobody was allowed to contact
Tom Carter as part of the investigation. Direct testimony
proved Detective Andrews was not only never at a sporting
event in Ukiah as the Sheriff’s “source” allegedly claimed, but
also that Deputy Andrews was actually responsible for Mr.
Carter being criminally prosecuted.
Based on this false information, Sheriff Rivero contacted
York Insurance Services who in turn contacted LACO
Investigations to conduct an investigation into Deputy
Andrews’ workers’ compensation claim. LACO investigations
followed and recorded Deputy Andrews’ every move for
several months. Even after the initial investigation had
concluded, at the request of Sheriff Rivero, the Lake County
Sheriff’s Office agreed to pay LACO Investigations additional
money to continue their surveillance.
Deputy Andrews went to all of his doctors’ appointments, and
his doctors encouraged him to participate in his day to day
life. Andrews stated that the doctors “encouraged me to do
that which I am able to do to essentially determine
whether...I was going to be able to continue my performance
as a peace officer. I have always been encouraged, even
directly after I had the multi-disk replacement surgery, to go
do what you can do...The absolutely worst thing for
somebody, as it was relayed to me, who has had the surgery
that I had, was to sit on my couch and do nothing.”
Deputy Andrews Attends Workers’ Compensation
Deposition
On April 25, 2011, Andrews was deposed by York Insurance
Services regarding his workers’ compensation claim. Prior to
the deposition, Sheriff Rivero and the attorney for York
viewed several months of video materials provided by LACO
Investigations. Deputy Andrews testified to the best of his
recollection about the different kinds of activities he had
participated in while off work.
Page 4
Mastagni attorney Sean D. Currin and
Deputy Tom Andrews celebrate a victory over
Sheriff Rivero.
This deposition was the first workers’ compensation
deposition Sheriff Rivero had attended involving a Lake
County Deputy. The Sheriff was so transparent regarding his
motivation and clear prejudice against Deputy Andrews, that
he had an administrative investigation and the administrative
leave paperwork prepared and delivered to Deputy Andrews
at the workers’ compensation deposition alleging dishonesty
concerning the very same deposition. The questions Deputy
Andrews was allegedly dishonest about were intentionally
non-specific questions lacking any clarifying follow up
questions. Lake County District Attorney Don Anderson
reviewed the charging materials, determining the deposition
was intentionally left vague and there was insufficient follow
up questions to arrive at the truth of the matter.
Several weeks later, Detective Andrews was interviewed by
investigator Captain Howe. At that time, Deputy Andrews
had an opportunity to view the videos and answer any
specific questions posed by Captain Howe. Detective
Andrews was never accused of dishonesty based on his
interview.
Sheriff Rivero Leads Biased Investigation Against
Deputy Andrews
In violation of any fair and unbiased investigation, Sheriff
Rivero made it clear to internal affairs investigator Captain
Howe just how he wanted him to conclude his investigation.
Specifically, Sheriff Rivero approached Captain Howe and
said, “[Detective Andrews] is going to be fired.” Consistent
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EXONERATED LAKE COUNTY DEPUTY (Cont’d)
with policy, Captain Howe forwarded his report to Captain Bauman, so he could issue a proposed discipline. Similarly, Sheriff
Rivero approached Captain Bauman and told him that he needed to propose termination for Detective Andrews. Detective Andrews
was served by Captain Bauman a Notice of Proposed Termination.
Prior to the Notice of Proposed Termination, the Lake County Sheriff’s Department had the Agreed Medical Examiner in Deputy
Andrews workers’ compensation case view the surveillance videos and give a medical opinion as to the activities Deputy Andrews
was engaged in. This report provided irrefutable medical testimony indicating Deputy Andrews was not dishonest regarding his
injuries in what he could or could not do. Dr. Stark’s report stated, “I saw nothing in the investigational videos that caused me to
conclude that Mr. Andrews was misrepresenting his physical condition.” Despite having a neutral medical doctor opine, Deputy
Andrews had not misrepresented his injury. Sheriff Rivero terminated Deputy Andrews.
Arbitrator Reinstates Deputy Andrews With Full Back Pay - Harsh Words Given For Sheriff’s Investigation
Fortunately for Deputy Andrews and the rest of the Lake County Sheriff’s Office, the opinion of their megalomaniacal department
head is not the last word. With the help and support from the Lake County Deputy Sheriff’s Association and PORAC Legal Defense
Fund, the arbitrator unequivocally agreed that Deputy Andrews was not dishonest during his workers’ compensation deposition. In
fact, the arbitrator emphasized the Department lacked the requisite proof by writing, “the Department must be able to prove the
facts on which it bases the discipline; and the Department has been unable to meet its burden of proof.” The arbitrator took
particular offense to the conduct of the Sheriff and went even further by noting, “the investigation conducted by the Department
was not fair or impartial and could not reasonably serve to support the discipline of the Grievant.” There was significant testimony
from former members of the Sheriff’s command staff who stated they believed the Sheriff was engaged in unethical activities. This
case seemed to highlight the unequal and biased investigation headed by Sheriff Rivero. The Lake County Deputy Sheriffs’
Association expects the sheriff to act fair and unbiased in all investigations.
Sean D. Currin is an associate attorney in the Labor
Department of Mastagni, Holstedt, Amick, Miller &
Johnsen. He represents peace officers in administrative
proceedings, grievances and critical incidents.
Mastagni, Holstedt, Amick, Miller & Johnsen is in the Blogosphere!
Please check out our Public Safety Law Blog at http://mastagnilaw.blogspot.com/
You’ll find news about recent cases, articles about our ongoing litigation, and occasional commentary on decisions
by the Public Employment Relations Board and the California and federal courts.
Also, check out our newest blog — Your Rights to Recovery: Personal Injury, Workers’ Compensation & Civil
Rights in California at http://mastagni-california-lawyers.blogspot.com/
You can subscribe to the blogs by e-mail or RSS feed. There is also a link to our blogs at our website,
www.mastagni.com.
LAW BULLETIN
Page 5
Mastagni, Holstedt, Amick, Miller & Johnsen
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SOCIAL MEDIA: LEGAL RIGHTS AND RESPONSIBILITIES OF PUBLIC
SAFETY AGENCIES & EMPLOYEES
By David E. Mastagni & Jeffrey R.A. Edwards
With the advent of instant communication social media
technology over the last decade, questions frequently arise
regarding to what extent can and should employers regulate
on- and off-duty social media communications by officers.
Mr. Mastagni and Mr. Edwards recently presented a series of
classes on the subject on behalf of the California Peace
Officers’ Association throughout California and at
COPSWEST. This article provides a summary of those
classes and addresses the following topics: (1) Peace Officer
and Agency Liability; (2) Peace Officers’ First Amendment
Rights; (3) Peace Officers’ Privacy Rights; (4) Concerted
Activity and Union Rights; (5) Social Media as Evidence.
Peace Officer and Agency Liability
Social media posting of false or inappropriate materials can
result in civil liability under a variety of privacy torts,
intentional infliction of emotional distress or negligence.
Christos Catsouras v. California Highway Patrol (2010)
Cal.App.4th 856 provides a striking example of the liability
risks officers and their employing agencies face when
sensitive evidence is disclosed.
On October 31, 2006, Nicole Catsouras was decapitated in an
automobile accident. CHP officers took multiple photographs
of her decapitated corpse. Without consent, “graphic and
horrific photographs” were e-mailed to uninvolved members
of the public. More than 2,500 Internet Web sites posted the
photographs. Family members received malicious e-mails
containing the photographs. The court held public safety
officers can be liable for negligence and intentional infliction
of emotional distress for distribution of accident photos. The
case eventually settled for $2.36 million.
Peace Officers' First Amendment Rights
The First Amendment provides, in part, “Congress shall
make no law ... abridging the freedom of speech.” Despite
legitimate liability concerns, rules restricting social media
posting or other forms of public communication must
comport with the First Amendment. The protections of the
First Amendment apply to the States and local governments.
Where the employee’s speech is protected by the First
Amendment, attempts to discipline the employee for speech
is not only prohibited, but also can result in liability for a civil
rights violation.
Public employee speech is not automatically protected; rather
the Supreme Court applies the Garcetti v. Ceballos test. The
Page 6
Supreme Court held a public employee can only assert a First
Amendment retaliation claim (1) if he or she spoke on a
matter of public concern, (2) if he or she spoke effectively as
a private citizen rather than as a public employee, i.e., if the
speech was not a result of what were already the employee’s
“official duties,” and (3) if on balance the government had no
adequate justification for treating the employee as it did.
Generally, commentary about public budgets, law
enforcement management, discrimination, political
endorsements, and whistleblowing are matters of public
concern, while private grievances or complaints are not.
The courts have reached different results based on slight
differences in the circumstances. In Chico Police Officers'
Assn. v. City of Chico (1991) 232 Cal.App.3d 635, a police
officer posted a copy of “The Centurion!” on the bulletin
board, which discussed alleged misconduct involving a chief’s
collision and making disparaging comments (“management
has the absolute right ... to mismanage”; “the Chief [has] his
hands in your back pockets: squeezing your wallet on one
side, trying to take your 4/10 on the other ... Resist for now
the temptation to revolt.”). The Court found these comments
to be protected under the First Amendment largely because
of the allegation of police misconduct. Conversely, in
Marshall v. City of Atlanta (11th Cir. 1985) 770 F.2d 174, the
Court found that calling supervisors “downtown lackeys” and
using profanities following a conference was not protected
speech.
Peace Officers' Privacy Rights
The three main privacy issues involving social media
currently before the courts and legislatures involve searches
of employer-owned electronic equipment, searches of stored
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SOCIAL MEDIA: LEGAL RIGHTS AND RESPONSIBILITIES OF PUBLIC
SAFETY AGENCIES & EMPLOYEES
electronic communications,
restricted social media sites.
and
demands
to
inspect
The first major privacy issue derives from the Fourth
Amendment prohibition on unreasonable searches and
seizures and it turns on whether an officer has a reasonable
expectation of privacy. In City of Ontario, Cal. v. Quon
(2010) 130 S.Ct. 2619, the United States Supreme Court held
an officer did not have a constitutionally-protected privacy
interest in the content of a department-issued alpha numeric
pager. The Supreme Court also recognized limitations on
public employee privacy rights in City of San Diego v. Roe,
which upheld a police officer’s termination for selling explicit
videos on eBay.
The second major privacy issue is a federal law, the Stored
Communications Act. The Stored Communications Act
prohibits employers from "knowingly, intentionally or
purposefully" accessing social media sites without
authorization. Plaintiffs can get damages, punitive damages,
and attorneys' fees and costs. In Pietrylo v. Hillstone
Restaurant Group (D.N.J. Sept. 25, 2009) a restaurant
manager twisted the arm of an employee to get access to a
chat room where other employees were talking about the
restaurant. The employee sued under the Stored
Communications Act. The jury found for the plaintiffs,
awarding them $3,403.00 in damages. The judge ruled it was
reasonable for the jury to decide the employee was coerced
into giving over the password. The Stored Communications
Act does not, however, protect employees if the employer has
authorization.
The most current privacy issue involves pre- and postemployment demands to disclose social media passwords or
websites. The ACLU launched into this issue in early 2011
when the Maryland Department of Corrections attempted to
avoid the Stored Communications Act by requiring
employees to provide usernames and passwords on
Facebook, Myspace, etc. In California, AB 1844 (signed
August 27, 2012) prohibits employers from requiring or
requesting an employee or applicant for employment to
disclose a username or password for the purpose of accessing
personal social media in the presence of the employer, or to
divulge any personal social media. The California law
eliminated a law enforcement exception in early versions of
(continued on page 14)
CONGRATULATIONS
TO MASTAGNI LAW’S SUPER
LAWYERS AND RISING STARS!
Super Lawyers selects attorneys using a rigorous,
multiphase rating process. Peer nominations and
evaluations are combined with third party research.
Each candidate is evaluated on twelve indicators of
peer recognition and professional achievement.
Selections are made on an annual, state-by-state
basis. Attorneys are researched regarding certain
honors, results or credentials, which indicate a high
degree of peer recognition or professional
competence. No more than 5% of attorneys are
selected for inclusion to Super Lawyers.
Mastagni, Holstedt, Amick, Miller & Johnsen is an
AV-rated law firm committed to serving clients
throughout California. After decades of practice, we
have built a proven track record of success that
ideally qualifies us to represent private citizens, as
well as police officers, firefighters and safety workers.
This year the firm congratulates partners David P.
Mastagni and John R. Holstedt for their selection to
2012 Northern California Super Lawyers. We are also
pleased to announce David E. Mastagni, along with
Phillip R.A. Mastagni and John P. Tribuiano III, have
been named to Northern California Rising Stars.
LAW BULLETIN
Page 7
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SACRAMENTO AREA FIREFIGHTERS, LOCAL 522 PREVAILS OVER THE
COUNTY OF SACRAMENTO FOR OVERTIME STAFFING VIOLATIONS
(continued from page 2)
assigning administrative captains, assigned to a 40-hour
week schedule, to fill the first eight hours of any 24-hour
firefighter vacancy rather than firefighters at the overtime
rate of pay. Telestaff has automated notices when overtime is
available and automatically calls employees, starting with
those in the same rank as the vacant position. Higher
ranking officers (the Chief and those in charge of scheduling)
can manually override the codes. Captain Steve Loza, the unit
representative, questioned Conneally about the change,
pointing out the administrative captain can not fill the first
eight hours of a firefighter vacancy while performing
administrative duties at the same time under the MOU.
Conneally told Loza that the Director of Operations directed
the practice and it would continue.
With failed attempts to resolve the matter informally,
Captain Loza filed a grievance to contest the practice. In his
written denial, Conneally claimed, although overtime must
be distributed fairly, it is up to the employer to decide which
hours are designated ‘overtime’ and that the first eight hours
of a vacant firefighter shift was not overtime if an
administrative captain was available to fill it. He argued the
“County Rights” section of the MOU gives the County the
power and authority to assign administrative captains to fill
firefighter vacancies. He called his policy a “long-standing
practice.” The firefighters under his command, many of
whom had been with the Department longer than the Chief
himself, had never heard of it.
To fully litigate the issue, Local 522 relied on its lawyers at
Mastagni, Holstedt, Amick, Miller, and Johnsen. Mastagni
attorneys Kathleen Mastagni Storm and Christina Petricca
represented the Union and presented their case before a
binding neutral arbitrator, as required by the MOU. They
argued the MOU language is clear—department managers do
not have discretion to assign firefighter overtime to
administrative captains without exhausting the Telestaff list.
The “County Rights” section of the MOU does not give the
County that power. Most importantly, we argued this
supposedly long-standing practice was expressly prohibited
by the MOU. Firefighter vacancies must be filled first by
same-rank employees—that is, other firefighters, not
administrative captains.
administrative captain’s duties. This created problems with
prioritizing work and completing tasks while being able and
ready to respond to calls, all while only being paid at their
regular rate of pay.
The County pointed to the County Rights clause of the MOU,
claiming broad authority and discretion to handle any
personnel issues in the department. The County’s chief
argument was firefighters have a right to fair distribution of
overtime hours, but not a guarantee of getting overtime
hours in the first place.
The arbitrator found in favor of the Union, persuaded by our
argument that employee rank must be the first factor used in
determining who to assign overtime. Because of the way
firefighters schedule their shifts, a vacancy necessarily
creates an opportunity for overtime, and the managers must
follow the MOU in assigning those hours. Administrative
captains are not the same rank as firefighters, so they can
only be assigned parts of those vacant shifts if other
firefighters are unavailable.
The arbitrator also made a factual finding the practice of
filling firefighter vacancies with administrative captains had
never previously existed, and indeed before March 2011, the
vacancies had always been filled properly by firefighters.
Placing administrative captains in firefighter shifts when not
necessary is essentially a unilateral change in the terms of
employment, and therefore an affront to the entire collective
bargaining process.
Arbitrator Cossack issued an award in favor of Sacramento
Area Fire Fighters, Local 522, requiring the County to
immediately reform its practice to filling firefighter vacancies
at the overtime rate of pay for the full 24-hour shift and
to follow the overtime rules outlined in the MOU and
applicable SOPs.
The union also argued the negative impact its new practice
had on administrative captains. It forced them to work two
jobs at once. When assigned to eight hours of a firefighter
vacancy, the captains also had to perform their
Page 8
LAW BULLETIN
Kathleen N. Mastagni Storm is a
senior attorney with Mastagni,
Holstedt, Amick, Miller and Johnsen.
Kathleen represents Sacramento Fire
Fighters Local 522 in labor and
disciplinary matters.
Christina J. Petricca is an associate
attorney with Mastagni, Holstedt,
Amick, Miller & Johnsen, and
co-counsel with Kathleen N. Mastagni
Storm on Local 522 matters.
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GOVERNOR BROWN ANNOUNCES ROLLBACK
TO PUBLIC PENSION BENEFITS
By Michael Jarvis
On August 29, 2012 Governor Brown announced what he
called “the biggest rollback to public pension benefits in the
history of California pensions.” The new laws change pension
caps, cost sharing, what counts as pensionable, and industrial
disability retirement. Most of the changes affect new hires,
however, several changes affect current employees as well.
On September 12, 2012, PORAC President Ron Cottingham
joined Mastagni Law labor consultant Michael Jarvis and
attorneys David E. Mastagni and Jeffrey R. A. Edwards to
discuss the new laws in a widely-attended webinar. This
article summarizes the highlights of that conversation and
reflects on how the new laws affect public safety
professionals.
Who Counts as a New Hire?
Anyone hired before January 1, 2013 and covered by any
public retirement system counts as a “Legacy Employee.” A
“new employee” is any employee who is new to any public
retirement system or had a break in service of greater than
six months. The importance of distinguishing between the
two employee groups is simple: some changes affect one
group and not the other, plus Legacy Employees will enjoy
the benefit of being able to lateral to another agency under
the prior retirement plans.
What About Laterals?
Legacy Employees will lateral to the lowest retirement plan
offered by the agency that was in effect on December 31,
2012. The catch is the employee may not take off more than
six months and must have reciprocity with the new agency.
CalPERS and most 1937 Act Retirement Plans have
reciprocity. Some agencies like Alameda require members to
be off the payroll before starting on their payroll or it voids
reciprocity, which can be costly in terms of retirement
benefits since all new employees will have a lower retirement
tier. Members currently employed as a Community Service
Officer or in the Academy Class and paying into a
miscellaneous retirement plan are also considered a Legacy
Employee.
A New Plan for New Employees
One major change to the retirement systems is the plans they
are allowed to offer. There are now three safety plans
available for new employees, Safety Plan Option 2 (2.7 @ 57),
Safety Plan Option 1 (2.5 @ 27) and Basic Safety Plan (2 @
57). The state mandated all new employees get the best
retirement plan that is lower then the existing retirement
plan at the age of 55; for example: 2 @ 50 is 2.62% or 2.7%
depending on retirement system at the age of 55, the new
employee would get 2.7 @ 57. Most safety plans in California
will now be 2.7 @ 57. The employer may not force a lower
plan without employee agreement than the plan assigned by
law using the above formula. It is also important to
understand the retirement age for safety remains at the age
of 50, the formula increases to the following maximums: 2 @
57, 2.5 @ 57 and 2.7 @ 57. Lastly, all new retirement plans
will be based on the highest three-year average.
Cap on Pensionable Compensation
Another major change to the new retirement plans is a cap on
compensation for purposes of retirement. Currently, systems
have caps on the percentage amount against average final
compensation period; e.g., CalPERS is 90% of a final
compensation period, 1937 Acts vary from 90%, 100% and
some are unlimited. New employees will have their
percentage based off of a capped amount of $110,100 for
agencies that have Social Security and $132,120 for agencies
without Social Security. This means if an officer makes
$150,000 a year, he will only contribute retirement
contributions based on one of the two amounts above
$132,120, then when he retires he will multiply his
percentage against that number, e.g., $132,120 * (2.7*30) =
retirement income of $107,017.20. If he makes less than the
amount then the percentage will be multiplied against his
highest three years. These dollar amounts may increase
annually based on the CPI for all Urban Consumers.
New Rules for Cost Sharing
The media has made sharing in the cost of pensions
front-page news. Cost sharing is addressed in different ways
in these bills. First, all new employees will pay half the
normal cost of their retirement plan; the employer may not
impose employee contributions in excess of fifty percent.
Some contracts may protect new employees from paying the
cost share until the current contract expires. Second, effective
2018, AB 340 lets employers impose 50% of the normal cost
of the retirement plan on current employees in most
circumstances. The mechanics are little bit different in
CalPERS and 1937 Act jurisdictions. Either way, employers
may not impose on the employee group without bargaining
through the impasse procedure including fact-finding.
LAW BULLETIN
(continued on page 19)
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TO THE BRINK AND BACK: FORMER SACRAMENTO POLICE OFFICER
PREVAILS AFTER SEVEN-YEAR RETIREMENT ORDEAL
By Steven W. Welty
Former Sacramento police officer Conrad Woodall recently
was awarded over $300,000 in back pay and benefits and a
medical retirement after seven years of litigation prompted
by an erroneous disability determination by the City of
Sacramento. The reinstatement and retirement awards came
after Mastagni, Holstedt, Amick, Miller & Johnsen obtained a
superior court judgment on Woodall’s behalf.
Finally, after Mr. Woodall engaged in a three-minute foot
pursuit of the driver of a stolen vehicle, Woodall’s back
locked up. The condition was an officer safety issue. On
November 3, 2004, he applied for an industrial disability
retirement with the California Public Employees’ Retirement
System (CalPERS) based on orthopedic injuries to his back.
City Forces Officer into “Twilight Zone” with
Erroneous Finding
Hired as a Sacramento police officer in 1999, Mr. Woodall
w a s ma r ri ed a nd enj oyi ng a
successful career in law enforcement
when he suffered his first back injury
in 2001. While pursuing a suspect,
Woodall landed awkwardly when
coming off a fence, injuring his knee
and back. He did not miss any work.
As time went on, Mr. Woodall was
involved in the foot pursuits and fights
that are typical in law enforcement.
He worked out with weights and was
active in martial arts. He wore the
standard equipment to include a duty
belt, firearm, baton, and radio.
It was at this point Mr. Woodall entered the “twilight zone.”
Local CalPERS jurisdictions like the City
of Sacramento have the authority to
d eci d e w h et h er a n e mp l oy ee’ s
a p p l i ca t i on for a w or k- r el a t ed
(“industrial”) disability retirement
should be granted. When Sacramento
received Mr. Woodall’s application for
an industrial disability retirement based
on his back injuries, the city made a
determination that sent Mr. Woodall’s
world into a tailspin for the next seven
years. On March 24, 2005 the City
approved a non-job related psychological disability retirement!
Mr. Woodall continued to be proactive and fought through
his back injuries, but his orthopedic condition deteriorated
quickly. By the end of 2004, Mr. Woodall was at the end of
his rope with chronic back pain. His hand and arm were
going numb and even his regular duties were causing
problems with his back and neck. His doctors were unable to
provide any lasting corrective treatment.
Mr. Woodall was shocked. He had never suffered any
psychological issues, had never asserted he was
psychologically disabled, and no psychologist or psychiatrist
had found him unfit for duty. No application for a
psychological disability retirement had ever been filed by Mr.
Woodall or the City. The only explanation given by the City
was the City’s doctor had expressed the opinion Mr.
Mastagni, Holstedt, Amick, Miller & Johnsen Receives “AV” Peer Review
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Martindale-Hubbell Peer Review Rating™. Mastagni, Holstedt, Amick, Miller & Johnsen was given
an “AV” rating from its peers, which means the firm is deemed to have very high professional
ethics and preeminent legal ability. Only lawyers with the highest ethical standards
and professional ability receive a Martindale-Hubbell Peer Review Rating.
Page 10
LAW BULLETIN
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TO THE BRINK AND BACK: FORMER SACRAMENTO POLICE OFFICER
PREVAILS AFTER SEVEN-YEAR RETIREMENT ORDEAL
Woodall’s back complaints were subjective and did not
correlate with the observable issues with his back and neck.
The City’s decision stigmatized Mr. Woodall with the
unwanted label of a psychological disability. His retirement
benefit was a dismal taxable benefit of just $600 a month, a
fraction of what he made as a police officer, and nowhere
near enough to support himself and his family. In a bad
economy, Woodall’s life became a bitter effort to survive.
Mr. Woodall appealed the City’s determination, but his
hearing did not occur for 18 months. In the meantime, a new
team of doctors conducted an additional MRI. The MRI
revealed Mr. Woodall had a ruptured disc and two disc bulges
in his neck that were compressing a nerve root on his spinal
cord. In addition to the chronic back problems, limb
numbness and weakness, his hand had developed visible
atrophy. In December 2005 Mr. Woodall had major surgery
to his cervical spine. It was clear his condition was not
“subjective”.
In August 2006, Mastagni, Holstedt, Amick, Miller &
Johnsen proceeded with Woodall’s retirement appeal
hearing. The City stipulated the basis of Mr. Woodall’s
disability was not psychological, as there was no competent
medical evidence to support such a position. Three months
later, the administrative law judge denied Mr. Woodall’s
disability retirement application on the basis there was not
sufficient evidence he was physically disabled while he had
still been employed. The judge’s decision was based on a
finding the MRI and ensuing surgery occurred after Mr.
Woodall was retired.
A CalPERS public safety officer has a mandatory right to
reinstatement to his former position if his disability
retirement application is denied. In addition, the City’s own
regulations recognized the administrative decision was final
and binding on the member and the City. However, the City
attempted to argue Mr. Woodall had voluntarily accepted the
psychological disability retirement and waived reinstatement
because he had been cashing the CalPERS benefit checks.
The argument was profoundly without merit.
After multiple rounds of pleading, depositions, and discovery,
the court rendered a decision. On March 4, 2011, the
Sacramento Superior Court ordered the City to reinstate
Woodall to his position as a police officer. He was also
awarded over $300,000.00 in back pay and benefits. The
court recognized the administrative decision had been
accepted by the City and had not been challenged by
Woodall. The court also recognized the City’s unilateral
action of imposing a non-job related psychological disability
retirement was not in the “nature of an offer that Mr.
Woodall could accept.” Therefore, it was not voluntary or a
waiver of appeal.
Mr. Woodall was recently approved for an industrial
disability retirement based on his orthopedic injuries. Now
that he has escaped the “twilight zone,” Mr. Woodall has the
retirement he should have been awarded back in 2004.
After the decision, and consistent with state law requiring
employers to reinstate employees whose disability retirement
applications are denied, Mr. Woodall repeatedly requested to
be returned to work as a Sacramento police officer. But the
City flatly refused to return Woodall to work, and he
remained out on the non-job related psychological disability
retirement. He was still trapped in the “twilight zone.”
Senior associate attorney Steve Welty is a
former Yuba City police officer who
specializes in labor and employment law
representation and disability retirement
litigation. He represented Conrad Woodall
throughout his ordeal.
Sacramento POA Authorizes Appeal
Mr. Woodall’s union, the Sacramento Police Officers
Association, authorized Mastagni, Holstedt, Amick, Miller &
Johnsen to take legal action to force the City to return
Woodall to work. The firm filed a petition for writ of
mandate in Sacramento Superior Court seeking an order of
reinstatement and back pay.
LAW BULLETIN
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Mastagni, Holstedt, Amick, Miller & Johnsen
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“HONORING THE HEROISM OF FIRST RESPONDERS”
ART COMPETITION AND RECEPTION
RECEPTION AND ART SHOW TO HONOR
THE ARTWORK OF RILEY LOPEZ
Each last Thursday evening of summer the firm hosts
clients, community leaders and public safety persons to
meet and socialize in our historical Victorian house
located at 1901 I Street in Midtown Sacramento. The
invitation to join the event is extended to our incumbent
and candidate friends of police and fire, allowing an
opportunity to discuss the needs of Sacramento and
California.
The firm’s kick-off event this year was an opportunity to
award the winner of 2012’s "Honoring the Heroism of
First Responders" student art competition. Sacramentoarea middle and high school students were invited to
create artwork depicting their appreciation for first
responders. The award for overall excellence in the 2012
"Honoring the Heroism of First Responders" Art
Competition went to Kennedy High School's 11th grade
student, Riley Lopez. Mastagni Law Firm, the Firefighter
Burn Institute and 522, recognized Riley’s artwork with a
reception and a Second Saturday art show at the Midtown
Victorian.
Riley stood alongside his teacher, Kennedy
High School’s Kathleen Sailer, whom he
attributed the opportunity to participate in
events that inspire.
Brian Rice, President of Local 522, graciously
awarded Riley a memento plaque and
$500.00. Brian and Riley are pictured here
along with Jeffrey Edwards of the Mastagni
Law Firm and Vice Mayor Angelique Ashby.
Page 12
Thank you.
LAW BULLETIN
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PRESIDENT PROFILE:
STEPHEN SCHLUER, MANTECA POLICE OFFICERS’ ASSOCIATION
Stephen Schluer, Manteca Police Officers’ Association’s
president, has been a police officer for nearly 16 years with
the City of Manteca. Stephen has been the president of the
MPOA for the past two years, and is running unopposed for
another two year term. He has been on the MPOA Board in
one facet or another for the past ten years. “These past two
years have been very exciting for me as president,” said
Stephen when asked about being president of the MPOA.
“We have negotiated a new contract and revamped our
association.” Stephen is a detective for Manteca Police
Department (MPD) and is assigned to the Delta Regional
Auto Theft Team (Delta RATT) through the California
Highway Patrol. Stephen is also assigned to the MPD
Hostage Negotiations Team where he is a Team Leader.
Stephen was the recent recipient of the Manteca Police
Department’s Meritorious Service Award. He was given the
award for his actions on April 6th, 2012. On that day,
Stephen had received information about a stolen vehicle
being in the central area of Manteca. After a short
surveillance, the vehicle became mobile and Stephen tried to
make a vehicle stop. There was a lengthy pursuit through
urban and rural areas, and during this pursuit, an AK-47
Assault Rifle was thrown from the vehicle. Stephen and other
officers converged on the area where the suspect had crashed
the stolen vehicle. The suspect was observed running from
the vehicle with a Mac 9 Sub-machinegun in his hands.
Stephen located the suspect himself, and without back-up,
took the suspect into custody without incident. The suspect
was a documented gang member and during the pursuit was
in possession of an AK-47 assault rifle, numerous high
capacity loaded magazines, narcotics paraphernalia and a
substantial amount of crystal methamphetamine. “Through
your efforts, a serious threat
to the community and law
enforcement was successfully
abated, at significant [risk] to
your own self,” stated Police
Chief Nick Obligacion during
the presentation of the award.
Stephen is very much a family
man. He has been married to
his lovely wife, Thaera, for eight years, and has a daughter,
Lela (age 7), and son, Collins (age 5). Stephen is also
extremely committed to the community where he lives and
serves. He is a member of the Sunrise Kiwanis, member of
the Board of Directors for the Boys and Girls Club of
Manteca, President of the Manteca Youth Softball
Manteca Police Detective Stephen Schluer is the
recipient of the Meritorious Service Award for the
pursuit and capture of a Manteca man with several
weapons, including an AK-47.
Association, Chairman of the Manteca Every 15 Minutes
Program, and member of the Board of Directors for the Manteca
Police Chief’s Foundation. Stephen has received the Manteca
Police Department Purple Heart, Rotary Officer of the Year
(2010), Community Policing Ribbon, Community Organization
Recognition Award, and Department Recognition Award.
Stephen has his Bachelor of Arts in Government from
Sacramento State. He is a Life Loyal Sigma Chi of the Sigma Chi
Fraternity, where he is an active member of the Sacramento
Valley Alumni Chapter.
Congratulations Mastagni Employees!
Sacramento Business Journal ranks
Mastagni Law Office 5th in
Sacramento Law Offices!
LAW BULLETIN
Page 13
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SOCIAL MEDIA: LEGAL RIGHTS AND RESPONSIBILITIES OF PUBLIC
SAFETY AGENCIES & EMPLOYEES (Cont’d)
(continued from page 6)
the bill, suggesting that background and Internal Affairs
investigators cannot even request officers or prospective
employees provide access to social media websites.
Concerted Activity and Union Rights
It is increasingly common to hear news of an employee
getting fired for posting unfavorable comments about his or
her employer on Facebook and other social media websites.
The NLRB has become active in this area. The NLRA or
Wagner Act, like the MMBA, protects “concerted activity;”
i.e. when an employee interacts with other employees or on
behalf of other employees for their mutual aid and
protection. Although not binding on California public
employers, NLRB decisions are persuasive authority to PERB
and California Courts. The NLRB General Counsel has
issued a series of reports providing guidelines setting forth
the type of social media restrictions that violate associational
representation rights. The NLRB has rejected rules
restricting “disparaging comments about employer,”
identifying oneself as an employee, discussing confidential
information, and prohibiting unprofessional communication.
Rules prohibiting bullying or harassment have been upheld
as well as limitations on misrepresenting the opinions of the
employer.
In Costco Wholesale Corp. (2012) 258 NLRB No. 106, the
NLRB invalidated a policy restricting statements made on
social media sites that "damage the Company, defame any
individual or damage any person's reputation", because it
could cause employees to assume statements of protest or
criticism made on social media sites were disrespectful or
injurious. Karl Knauz Motors Inc. (2012) 358 NLRB No. 164
involved the termination of a car salesman over Facebook
posting of photos of a car accident and comments critical of a
sales event. The employee’s criticized the sales event
because it related to issues that could affect the sales staff's
commissions. The termination was upheld because they were
posted solely to ridicule the dealership. Pending challenges
to the Lexipol policy on Social Media will likely determine the
extent to which these NLRB authorities are applicable to
public safety employees.
violations and seeking discovery of their social media
postings. Electronic discovery is on the rise in all areas of
litigation, but public safety officers are particularly
susceptible to having their social media subpoenaed not only
to challenge their workers’ compensation claims, but also to
impeach their testimony or search for evidence of bias or
inflammatory materials. For example, in Manasco et al. v.
Board of Police Commissioners et al. (2011, E. D. Mo.),
officers had to intervene to limit the discovery of text
messages on their phone, but were required to produce ten
days of text messages.
In Jerome Vorus v. District of Columbia (D.D.C. Case No.
1:11-cv-1219), the ACLU filed a federal civil rights lawsuit
against the police department in the District of Columbia
over its policy for dealing with citizens’ cell phone
videography. Ultimately, the District settled the case with
the ACLU and wrote a new policy making it very challenging
for police there to seize evidence of crimes on citizens’ cell
phones or limit activists’ interference in law enforcement
operations. It is clear the ACLU will remain very active in
this area. They have recently launched a smart phone
application for activists to record officers and send video and
audio files directly to the ACLU for review.
Conclusion
Social media is sure to stay on the front burner of law
enforcement labor issues in the coming years as the ACLU
files more lawsuits, public defenders become more savvy, and
law enforcement managers seek to regulate officers’ social
media activity. With significant risks and rewards for
increased use of electronic devices and social media, it is
critical the law enforcement community remain vigilant in
protecting officers’ rights and law enforcement labor
associations, and in particular, stay current on the latest
developments in this quickly-evolving area of law.
Social Media as Evidence
The courts have already determined “the videotaping of
public officials is an exercise of First Amendment liberties.”
Marker v. City of San Jose (N.D. Cal., July 31, 2012) 2012
WL 3116383. However, criminal defendants and plaintiffs
are increasingly suing law enforcement for civil rights
Page 14
LAW BULLETIN
David E. Mastagni is a partner with
Mastagni, Holstedt, Amick, Miller & Johnsen,
where he emphasizes labor and employment
law representation.
Jeffrey R. A. Edwards is an associate attorney
with Mastagni, Holstedt, Amick, Miller &
Johnsen, who concentrates on complex civil
litigation and the Fair Labor Standards Act.
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PERB, NLRB PROTECT EMPLOYEES’ SPEECH RIGHTS
By Kyle A. Wende, Law Clerk
In a pair of recent cases, the Public Employment Relations
Board (PERB) and the National Labor Relations Board
(NLRB) fired back at employers who retaliated against
employees for their spirited comments during concerted
activity. PERB ruled the Department of Corrections could not
discipline a union representative for “disrespectful” behavior
in a meeting. The NLRB went even further, ordering an
employer to reinstate an employee who made several crude
and arguably threatening statements during a union
decertification effort.
PERB reaffirmed employee conduct around union matters is
protected unless “found to be sufficiently opprobrious,
flagrant, insulting, defamatory, insubordinate, or fraught
with malice as to cause substantial disruption of or material
interference in the workplace.” This is not a new rule, and
PERB has long understood “representatives of both unions
and employers may resort occasionally during
representational meetings to intemperate speech or less than
civil conduct.” The rule exists to ensure employers cannot
punish union activity under the pretense of a general
workplace code of conduct.
The California case is State of California (Department of
Corrections & Rehabilitation) (2012) PERB Decision No.
2282-S. The employee was a union representative, acting on
behalf of another employee in a disciplinary meeting. During
the meeting, the union representative tried to make
statements, but a management representative stopped her
and told her she could not speak. In response, the union
representative held her hand up towards the manager and
said she was not speaking to him. Similar exchanges
happened several more times during the meeting.
Afterwards, the Department gave the union representative a
Letter of Instruction for “insubordinate, discourteous,
unprofessional, and disrespectful” behavior.
In the federal case, Fresenius USA Manufacturing, Inc. Case
02-CA-039518, the NLRB came out even stronger for union
free speech rights. The employee was a union supporter who
opposed an effort to decertify Teamsters Local 445 at
Fresenius’ New York facility. The employee made an
anonymous post in a newsletter that began with, “Dear
P*****s, Please Read,” and ended, “Warehouse Workers,
RIP.” Other employees complained, calling the post “vulgar,
offensive, and threatening.” The employer fired the
employee, in part for the posts. But, the NLRB ruled it was
illegal to fire the employee for his comments. The NLRB
decided the employee’s language was not bad enough to lose
protection under federal labor laws.
SANTA CLARA COUNTY CORRECTIONAL
PEACE OFFICERS’ ASSOCIATION (SCCCPOA)
AT THE 2012 CUSA CONVENTION
STATE COALITION OF
PROBATION ORGANIZATIONS’
QUARTERLY MEETING
Liane “Buffie” McFadyen, former Colorado
State Representative, Julio Alvarez, SCCCPOA
Vice President, Carlton Gray, SCCCPOA
Sergeant at Arms, and Jim Biardi, Florida PBA
State Correctional Officer President at the 2012
CUSA Convention.
Mastagni partner Christopher Miller
addresses the State Coalition of Probation
Organizations, which he serves as general
counsel.
LAW BULLETIN
Page 15
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MASTAGNI LAW OFFICE WINS GRIEVANCE OVER SICK LEAVE BONUS
By Stuart K. Tubis
Earlier this year, the Martinez Police Department denied one
of its non-sworn employees, Robin Gonzales, a sick leave
bonus due to her under the Memorandum of Understanding
(MOU). According to the MOU, employees are eligible for a
sick leave bonus when they use 32 hours of sick leave or less
in a given fiscal year. Ms. Gonzales had received surgery for a
work-related injury and asked her Department at that time
how her sick leave time would be affected and if she would be
denied a sick leave bonus. The Department told Ms. Gonzales
that any time off used to recuperate from her injury and
surgery would not count against her for purposes of a sick
leave bonus.
Ms. Gonzales acted according to the instruction of her
department and used less than 32 hours of sick time for her
injury. Though many hours were necessary to recover from
the injury, the City was reimbursed for an overwhelming
majority of those hours and workers’ compensation sick leave
was used for much of the remaining time. In total, Ms.
Gonzales used only 22 hours of actual sick leave for the entire
fiscal year, much less than the cutoff for a sick leave bonus.
Department’s error and attempted to resolve the matter
informally. That was not successful, so Ms. Gonzales turned
to attorneys at Mastagni, Holstedt, Amick, Miller, and
Johnsen. Stuart Tubis, a lawyer for the firm, and David
Topaz, a negotiator for the firm, took up the case on Ms.
Gonzales’ behalf. Mr. Tubis filed a formal Step 1 Grievance
and Mr. Topaz skillfully worked to negotiate a favorable
outcome with the department.
After their work on the case, Mastagni Law Firm and Ms.
Gonzales prevailed. The grievance was won at the first step
without having to file additional grievances in the multi-step
process. The Department approved the remedy requested by
Ms. Gonzales and granted her a Sick Leave Bonus of eight
hours of CTO in full satisfaction of her complaint. This was a
small victory with larger symbolic importance and has shown
that departmental error can be corrected with the proper
legal approach.
Stuart K. Tubis is an associate attorney with
Mastagni, Holstedt, Amick, Miller &
Johnsen in the Workers’ Compensation
Department.
However, on July 17, 2012, Ms. Gonzales discovered the
TULARE COUNTY DEPUTY EXONERATED (Cont’d)
(continued from page 3)
force, if it is reasonable to use three, four and five, the peace
officer is not required to use three merely because it is the
least amount available. The officer is permitted to use five if
he or she makes that split second decision to do so.
In addition to attacking the department’s misapplication of
the well-settled level of review, the department failed to train
Deputy Carter properly. Department witnesses acknowledged
Deputy Carter “slipped through the cracks” with respect to
his training in defensive tactics and weaponless defense. In
the seven years he has been employed with the department,
he never received updated defensive tactics or weaponless
defense training.
In the words of Mr. Warren, “Training equals tools. If you do
not get training you won’t have as many tools to use.”
Because of the complete lack of training the department
provided Deputy Carter, he had limited tools available to
control the inmate. Deputy Carter was taught to take an
inmate to the ground sooner rather than later because the
deputy has a better opportunity to control an inmate on the
Page 16
ground. With this training, Carter did as he was told and
used the tools he was given to act reasonably under the
circumstances.
Hearing Authority Exonerates Deputy Carter
The hearing authority was comprised of three panel
members. A member selected by Deputy Carter, a member
selected by the Sheriff’s office and Commissioner Cox from
the County Board of Supervisors. After twenty minutes of
deliberation, the panel members returned with a decision
completely reversing the findings of excessive force and
eighty-hour suspension and awarding Deputy Carter full back
-pay. In addition, the panel ordered the department to enroll
Deputy Carter in the next weaponless defense tactics course
offered by the department.
LAW BULLETIN
Sean D. Howell is an associate attorney
with Mastagni, Holstedt, Amick, Miller &
Johnsen. He represented Robert Carter in
his administrative appeal before the Tulare
County Employment Appeals Panel.
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Mastagni Law Office is Going Mobile!
All of us at the Mastagni Law Firm are excited about launching the Mastagni Law Firm mobile
application. The firm’s app will include an exposure report, for on-the-job contact with hazardous or
potentially dangerous elements; an accident log to record any and all important information pertinent to
your potential case; as well as medical appointment logs in the event you are injured and must keep a
reference record of doctors appointments. The app will give you direct 24-hour call service and FAQ’s on
protecting your rights.
The Mastagni Law Firm provides first responders and private citizens with helpful resources and
emergency tools to assist with on-the-job injuries and life-changing events.
App Features:
•
Accident Log to record pertinent information at the scene of a vehicle accident
•
Ability to capture photos of accident scene and vehicle damage
•
Medical Log in the event you are injured, an automated calendar will keep track of your
doctor appointments, dates and allows for notes on medical recommendations
•
24-Hour access to call our attorneys to report a Critical Incident
•
Exposure Report to submit to our attorneys in the event you have been exposed to a
potentially hazardous element
•
Helpful resources on Contract Negotiation
•
Contact form to submit to our attorneys
Since 1976, we have been assisting police officers, firefighters, and other safety workers in
matters ranging from internal discipline and criminal defense to wage and hour, disability, and
workers' compensation claims. Our Sacramento law firm also represents their unions and labor
associations in collective bargaining contract negotiations and other matters.
For over 37 years, the Sacramento law firm of Mastagni, Holstedt, Amick, Miller & Johnsen has
served clients throughout California in a wide range of civil law matters, including labor and
employment law, wage and hour litigation, personal injury, workers' compensation, disability
retirement, Social Security disability appeals, and public employment contract negotiations.
We expect a mid-November launch date. Look for the free
Mastagni Law Firm app on Android Market and iTunes!
LAW BULLETIN
Page 17
Mastagni, Holstedt, Amick, Miller & Johnsen
www.mastagni.com
2012 LEGISLATIVE UPDATES
By Jeffrey R.A. Edwards
In the last legislative session, the Legislature passed
hundreds of new laws. The most significant bills made major
changes to retirement security and the workers’
compensation system. But several other bills affect public
safety professionals - both on bread-and-butter labor issues
and public safety issues. Here’s a run down of what Governor Brown signed and vetoed.
Important Labor Issues
•AB 2140 reduces the PERS contribution rate of CHP
employees by 3%.
•AB 2285 sets a fine of up to $1,000 for cheating on a peace
officer basic course exam.
•AB 2269 makes May the “Labor History Month” and encourages schools to participate with special lessons.
•AB 2069 extends workers’ compensation benefits to
Sheriff’s Special Officers of Orange County.
•AB 2674 creates more specific rules for an employee’s right
to inspect employment records.
•SB 987 expands some rights employees have in the CalPERS
system.
•SB 1234 creates the California Secure Choice Retirement
Savings Trust, offering employees a new
state-protected retirement savings program.
•AB 1345 changes some rules for auditing local governments.
•AB 2343 clarifies rules governing the Department of
Justice’s use of criminal history information for
employment and other purposes.
•Governor Brown VETOED AB 2451, which would have set
shorter time limits for surviving families of firefighters and peace officers to collect death benefits in
some workers’ compensation cases.
Public Safety Regulations
•AB 801 gives code enforcement officers the peace officer
power to arrest when enforcing illegal dumping or
littering laws.
•AB 2055 makes it easier for police to get search warrants to
use electronic tracking devices.
•AB 2015 creates state-wide rules for arresting officers to
ensure care of suspects’ minor children.
•AB 2189 allows legal immigrants to get a driver’s license
without a social security number.
•SB 1466 clarifies which employees of the City of Los Angeles
count as peace officers.
•SB 1067 allows the City of Tululake to enter a mutual aid
agreement with Marin, Oregon.
Page 18
•SB 1315 allows the local agencies in the County of Los
Angeles to more strictly regulate imitation firearms.
•AB 1098 changes how revenue from vehicle license fees is
distributed.
•Governor Brown vetoed AB 1081, which would have
prevented California law enforcement from using
federal immigration laws as a reason to hold
criminal suspects longer than state law allows; AB
1968 which would have would forced some chief
probation officers to arm probation officers with
high-risk caseloads; AB 2623 which would have
required State Hospitals to arm officers; SB 1434
would restrict law enforcement’s ability to locate
electronic devices by demanding that information
from internet and other electronic service providers;
and AB 2527 would require, rather than allow,
courts to end a person’s probation in certain
circumstances.
Mandatory Reporting
•SB 1051 changes the rules for mandatory reporting of death,
injury, and abuse, in state hospitals for persons with
developmental disabilities.
•AB 1434 and SB 1264 change the rules for mandatory
reporting of suspected child abuse.
•AB 40 changes the rules for mandatory reporting of
suspected elder or dependant adult abuse.
Victims’ Rights
•SB 1144 removes a Department of Justice requirement to
post future violence risk information for sex
offenders on the internet.
•SB 1299 expands the rights of crime victims to file for and
receive compensation from the California Victim
Compensation and Government Claims Board
Restitution Fund.
•SB 1479 further punishes counterfeiters by forcing them to
pay victims for the value of counterfeit goods not yet
sold.
•AB 1593 changes the way the Board of Parole Hearings deals
with evidence of intimate partner battering.
•SB 1082 changes some rules governing the state program
that protects address information of domestic
violence and stalking victims.
Sentencing
•SB 661 makes it a crime to picket at a funeral.
LAW BULLETIN
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PUBLIC PENSION BENEFITS
(Cont’d)
2012 LEGISLATIVE UPDATES
•SB 1221 generally prohibits private citizens from using dogs
to hunt bears and bobcats, with exceptions for
protecting property.
•AB 1794 increases enforcement for crimes of misuse of
confidential employment information.
•AB 2327 adds to laws relating to fraud by charitable
organizations, and will give the Attorney General
more power to enforce those laws.
Corrections
•SB 1462 allows county sheriffs to release some terminally ill
prisoners if they pose no threat to public safety.
•SB 542 expands the approved use of the Inmate Welfare
Fund.
•AB 2127 allows counties to offer county inmates more
options for work-release credit.
•AB 1445 creates a pilot program to allow some counties to
use inmate welfare funds to assist inmates in certain
ways after release.
•Governor Brown vetoed AB 1270, which would have
required state prisons to allow members of the press
to speak to inmates in person; and AB 2031, which
would have added more positions to the Board of
State and Community Corrections and local
Community Corrections Partnerships.
(continued from page 9)
What Parts of Compensation
New Employees’ Pensions?
Count
Toward
AB 340 also limits what is compensable for new employees in
CalPERS. Pensionable compensation excludes any benefit
paid to increase retirement benefits, unused leaves (vacation,
annual, personal, sick and CTO), allowances (housing,
vehicles, or uniforms), overtime (does not include scheduled
overtime, i.e. 3/12 4/12 or 48/96, etc), and bonuses. What
counts in 1937 Act counties can be different in each one.
These changes affect current and new employees and have
created significant issues of interpretation with the 1937 Act
Retirement Systems. It is extremely important to get a
position statement from your CERA as soon as possible.
Good News on IDRs
Time for the good news! There are new Industrial Disability
Retirement rules for CalPERS as part of AB340. The main
change here is for members who have served long enough to
exceed 50% of their pay and who are less than the age of 50.
On the old law, this group of members would only receive
50%. For example you started as a firefighter at the age of 18
in a 3 at 50 retirement plan, you are now 48 and are
medically retired. Under the current system you would
receive 50% not 90%, but under the new law your retirement
would now be 50% tax free plus 31% taxable. While that’s still
less than 90% service retirement, it is significantly greater
than the current system for an IDR.
Jeffrey R. A. Edwards is an associate
attorney with Mastagni, Holstedt, Amick,
Miller & Johnsen, who concentrates on
complex civil litigation and the Fair Labor
Standards Act.
Michael W. Jarvis is a former private
sector management and human
resources professional, and the firm's
expert in classification & compensation
studies and health care systems.
LAW BULLETIN
Page 19
Mastagni, Holstedt, Amick, Miller & Johnsen
www.mastagni.com
WELCOME NEW CLIENTS!
LOS ANGELES COUNTY CITY
ATTORNEYS ASSOCIATION
NEVADA COUNTY DEPUTY
SHERIFFS’ ASSOCIATION
The Los Angeles City Attorneys’ Association
has retained Mastagni, Holstedt, Amick, Miller &
Johnsen to serve as the Association’s litigation
counsel. The Association represents over four
hundred members working as deputy and
assistant city attorneys in the City Attorney’s
Office. Partner, David E. Mastagni, and associate,
Isaac Stevens, are serving as lead counsel for the
Association in a state court lawsuit challenging
the City’s attempt to freeze retiree medical
benefits and a federal court lawsuit challenging
the City’s unilateral implementation of mandatory,
unpaid furloughs on the Association’s members.
RESCUE FIRE DEPARTMENT
The Mastagni Law Firm is pleased to welcome
our newest client, Rescue Firefighters
Association. The Fire District is located in the
City of Rescue, in El Dorado County. The
Rescue Firefighters Association has retained our
firm for contract negotiations, grievance and
discipline representation, and corporate
counsel. Attorney Kathleen N. Mastagni Storm
and Labor Negotiator Dennis Wallach look
forward to working with the Association and
President Brett Jones, and assisting them in
all areas.
Page 20
LAW BULLETIN
The Nevada County Deputy Sheriffs’
Association and President Mike Sullivan
recently hired Mastagni, Holstedt, Amick,
Miller & Johnsen as corporate counsel. The
Nevada County Deputy Sheriffs’ Association
designated our law firm as its legal defense
provider. David E. Mastagni and Judith A.
Odbert will serve as the Association’s primary
attorneys handling all corporate counsel
matters, discipline cases and grievances.
Labor Negotiator David E. Topaz will work
with Mike Sullivan and the board in contract
negotiations.
MODOC DEPUTY
SHERIFFS’ ASSOCIATION
The Modoc County Deputy Sheriffs’
Association, presided over by Mark Muller,
has retained Mastagni, Holstedt, Amick, Miller &
Johnsen for representation in labor negotiations,
legal defense, and corporate counsel. The
Association is composed of approximately 40
members, and includes the classifications of
Sheriff’s Deputies, Correctional Officers, and
Dispatchers. The group of law enforcement
officers was previously represented by LIUNA
(Laborers International Union of North
America), before making the move to us. Labor
Negotiator, Mark Salvo, will serve as the lead
consultant for the Association, alongside one of
the firm’s Senior Attorneys, Steven Welty. We
look forward to assisting the Modoc County
Deputy Sheriff’s Association in contract
negotiations with the County in upcoming
months.
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Mastagni, Holstedt, Amick, Miller & Johnsen
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WELCOME NEW ATTORNEYS!
ANDREW R. MILLER
ERIN M. DERVIN
Andrew R. Miller is an associate
attorney in the Workers’
Compensation Department at
Mastagni, Holstedt, Amick, Miller
& Johnsen. He represents injured
workers in hearings and trials
before the Workers' Compensation
Appeals Board in California. He is
licensed to practice law in
California state courts and the Federal Court of the Eastern
District of California. Andrew has also had prior experience
in civil litigation where he made arguments through law and
motion and assisted with trials. He graduated from
McGeorge School of Law, and earned a certificate in
international legal studies. While at McGeorge, he also served
as a law clerk for the California Department of Personnel
Administration, and was one of the founding officers of the
McGeorge Employment and Labor Law Society. He also
volunteered as a legal intern for a public interest watchdog of
the Lawrence Livermore National Laboratory. As a captain
of California Lutheran University’s track team, he made the
senior all-time list in the 400 meter hurdles. He is an Eagle
Scout.
Erin M. Dervin joined Mastagni,
Holstedt, Amick, Miller & Johnsen as
an associate attorney in the Labor
Department. Previously, she was a
prosecutor with the Shasta County
District Attorney’s Office. There, she
handled litigation and trials including
complex financial crimes, sexual
assaults, narcotics, domestic violence
and general felony practice. She has tried over 60 jury trials.
Erin also prosecuted civil cases in the area of Consumer Fraud
and Unfair Business Practices, obtaining judgments against
numerous national and multi-national organizations. Erin has
been an adjunct professor in Criminal Justice at National
University, and has instructed law enforcement in the areas of
Welfare and Institutions Code Section 5150 as well as in
investigative techniques in financial crimes. Erin coordinated
the Shasta County Mock Trial Competition for fourteen years.
Mastagni, Holstedt, Amick, Miller & Johnsen
Support the Deputy Jeff Mitchell
Whiffle Ball Tournament!
CRAIG A. TOMLINS
Craig A. Tomlins is an associate
attorney with the Labor and
Empl oy ment Dep art ment of
Mastagni, Holstedt, Amick, Miller
& Johnsen. Craig represents public
sector employees in administrative
and disciplinary investigations,
hearings, arbitrations and officer
involved shootings. Before joining
Mastagni, Holstedt, Amick, Miller & Johnsen, Craig was a
litigation associate at a Sacramento firm practicing civil
rights and general civil litigation. Craig earned his J.D. from
the University of the Pacific, McGeorge School of Law and
graduated as a member of the Order of the Coif and Roger J.
Traynor Honor Society. He received his B.A. from the
University of San Diego, graduating magna cum laude.
Mastagni, Holstedt, Amick, Miller & Johnsen support
the Deputy Jeff Mitchell Whiffle Ball Tournament in Elk
Grove. Deputy Jeff Mitchell was killed in the line of duty
in 2006. The tournament in his name was started in
2008 to raise funds for benevolent groups assisting law
enforcement. This year the tournament raised about
$4500.00. This amount was contributed toward the
Brian Hall Scholarship Fund, EOW, and Norcal COPS.
LAW BULLETIN
Page 21
Mastagni, Holstedt, Amick, Miller & Johnsen
www.mastagni.com
MASTAGNI LAW OFFICE CO SPONSORS THE 9/11 RUN TO REMEMBER
SACRAMENTO AREA FIREFIGHTERS
WIDOWS & ORPHANS FUND:
9/11 RUN TO REMEMBER
The Sacramento Area Firefighters Widows &
Orphans Fund is a charity established to provide
financial and other assistance to injured and
fallen members of Sacramento Fire Fighters
Local 522 and their families; provide scholarship
and tuition reimbursement programs for the
benefit of injured and fallen members of Local
522 and their families; and provide public
education and community outreach related to the
importance of fire prevention and safety in the
community. The Widows & Orphans Fund holds
the “9/11 Run to Remember” to honor fallen first
responders and their families. The event is widely
supported by local businesses and other law
enforcement associations. Mastagni Law Office
was proud to participate.
For more information about how you can contribute to the
Sacramento Area Firefighters Widows & Orphans Fund,
please visit http://www.saffwo.org/.
L to R: Amanda Stevens, Deputy District
Attorney Amber Hawk, Mastagni attorney Isaac
Stevens, Mastagni labor negotiator Jesse
Harrel, Maxwell Conor Donoghue, Mastagni
attorney Tony Donoghue, Mastagni attorney
Ian Roche, Heather Sullivan, Heather Roche and
Ryan Roche take a group picture at the finish
line of the 9/11 Run to Remember.
Mastagni attorney Dan Osier
crosses the finish line .
Mastagni attorney Tony
Donoghue and son Maxwell
support the fallen heroes.
Page 22
LAW BULLETIN
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MASTAGNI LAW OFFICE SPECIAL EVENTS & SPONSORSHIPS
2nd ANNUAL PLACER 10-35
FOUNDATION GOLF TOURNAMENT
42nd ANNUAL MPOA
GOLF TOURNAMENT
L to R: Kevin Oakley, VP of Monterey County
Deputy Sheriffs’ Association, former deputy Mike
Richards, & Mastagni attorney Craig Tomlins.
STAR 6 GOLF TOURNAMENT
The 10-35 Foundation is a deputy benevolent foundation
designed to provide assistance to injured or fallen
deputies or family members of the Placer County DSA.
The firm continues to support the foundation as a
Bronze Sponsor of the annual golf tournament in
Auburn, California. On behalf of the firm, David E.
Mastagni accepted a limited edition print created by
Sgt. Ty Conners.
ALAMEDA COUNTY SHERIFF’S OFFICE
SWAT TEAM TAKES FIRST IN URBAN
SHIELD COMPETITON!
L to R: Phillip Mastagni, Rinaldo Monterrosa,
Bryan Schmidt and Bill Hutto. Star 6 Foundation
acts as the benevolent arm of the Sacramento
County Deputy Sheriffs’ Association.
SAN JOSE POA GOLF TOURNAMENT
Congratulations to Alameda County Sheriffs’ Office
SWAT team for placing first and Sacramento Police
Department SWAT for placing second in the 2012
Urban Shield Bay Area competition. Urban Shield is
a continuous 24-hour exercise, during which first
responders are deployed to and rotated through
various training scenarios.
LAW BULLETIN
L to R: Dan Osier, Darrell Cortez (San Jose Police
Dept.), Chaplain Dave Bridgen, John Krallman,
Phillip Mastagni benefiting the San Jose Police
Department Chaplaincy Program.
Page 23
Proudly providing
legal representation
to law enforcement
for over 37 years
This year the firm congratulates partners David P. Mastagni and John R. Holstedt
for their selection to 2012 Northern California Super Lawyers®. We are also
pleased to announce David E. Mastagni, along with Phillip R.A. Mastagni and
John P. Tribuiano III, have been named to Northern California Rising Stars.
Workers’ Compensation • Personal Injury • Catastrophic Injury
Motor Vehicle and Aviation Accidents
Disability Retirement • Products Liability • Negligence
Public Safety/Employment Law • Wage and Hour Law • Criminal Representation • Discipline Cases
1912 I Street, Sacramento, CA 95811
916.446.4692 Toll Free 800.852.7581
www.mastagni.com
Making a false or fraudulent workers’ compensation claim is a felony subject to up to five years in prison or a fine of
up to $50,000 or double the value of the fraud, whichever is greater or by both imprisonment and fine.