School is back in session in the Central Valley and this is always a busy season for us at the FDSA. The annual Peace Officer Memorial Golf Tournament is around the corner and we are proud to announce the event is SOLD OUT! 200 golfers will be teeing off around 8am at Eagle Springs Golf Course on October 20th! If you would like to volunteer to help or just hang out, feel free to join us that day for the biggest fundraiser of the year. As always- the proceeds assist families of fallen deputies and also provide opportunities for coworkers to honor those who paid the ultimate sacrifice in Sacramento and Washington DC.
As you are aware, each member of the Fresno County Sheriff's Office is required to log on, review, and then acknowledge you have read the current Lexipol Policy.
This policy has been discussed and thoroughly reviewed by the FDSA and our legal counsel. A majority of the existing policy transferred over from FSO Policy directly to Lexipol. The purpose of the Lexipol Policy is a formalized way to provide up-to-date guidelines, procedures, and protocols for law enforcement agencies. The policy includes case law updates to provide the agency with the latest legal information- which is important for everyone in a law enforcement career.
During this two year process, FSO management and FDSA leaders have been meeting to review the policy. It has been a priority to ensure the language provided in the documents is transferred accurately, and that any additions are discussed and agreed to prior to being included in the policy. After careful review and several meetings with the Sheriff's administration, some portions of the policy were put on hold until we can get an agreement between FSO Management and FDSA. Most of the changes we made in the policy were grammatical, however- the language provided in a few instances, could have resulted in a different intent. Some interpretations could have been drawn, so we clarified these issues.
There are some policies you have not seen yet; such as grooming and personal communication devices. The reason being – in order to publish something new FDSA and FSO shall meet and agree on this change or addition. Ironically, you saw policy 1030, dealing with social media, published July 7th. This policy, one we have never had at FSO, by-passed the process of meeting, discussing and ultimately agreeing to publish. Many of you, from the time that rolled out contacted me with concerns. All of those concerns have been addressed with FSO Management.
On August 22, 2017 FSO Management depublished the policy so we would be able to further discuss and come up with resolution that both sides can live with. Once we have that agreement, you will be notified as the policy will be republished to the entire organization. I want to thank those of you reaching out to me with many of your comments and concerns. That helps tremendously in a somewhat sensitive policy such as that one.
Assembly Bill 119
On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees. Fresno Deputy Sheriff’s Association is one of these groups. This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information. Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice. The employer must also provide the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties. Some of these items are currently being followed by FSO and the County of Fresno and some need to make their way in-line. The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union. The statute also adopts the privacy protections set forth in County of Los Angeles.
The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section." Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.
This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.
Below are lists of some questions asked by PORAC prior to the bill being signed so there was as much clarity as possible when it came to what the rollout of the governor’s bill would be.
When do I need to begin complying with AB 119? Now. Most bills take effect on January 1st. However, AB 119 is part of the “Budget Bill” (Cal. Const. , Art IV, §12) which means it takes effect immediately.
What does my agency need to do? AB 119 places an affirmative burden on public agencies to immediately begin doing three things (Gov. Code sections 3555-3559):
If you haven’t already, then your agency should put into place procedures to comply with these three requirements.
AB 119 also has a requirement that, upon request, the parties bargain over the structure, time, and manner of access of the union to a new employee orientation. But again, this is only upon request.
How does the notice requirement work if my agency’s orientations are individualized and not in a group setting? The bill leaves such details for negotiation between the parties. Getting clarification on this issue might be one reason a public agency would want to request to bargain over these issues affirmatively, as opposed to waiting for a request from the union. But in the meantime, my advice is to comply by providing the union ten day’s advance notice of all orientations, even individualized employee orientations. This assumes that the individualized employee orientation is the only one conducted by the agency. If the agency conducts a group orientation and also an individualized one, I think giving notice of the group orientation is sufficient.
What if my agency’s orientation is exclusively online, and conducted at the leisure of the employee? The bill expressly provides that online employee orientations are covered, but beyond that, the bill leaves details of compliance subject to negotiation between the parties. Again, getting clarification on this might be one reason a public agency would want to request to bargain over these issues affirmatively. But until then, my advice is they comply by providing the ten day’s advance notice if you know the date of the online orientation. What if the online orientation is done by the employee at his or her leisure? For example, the employee is given a link and told to complete the orientation within a certain amount of time. My advice is to try to comply as much as possible. In this example, you can notify the union that a new employee has been hired, that the employee has been told to complete online orientation, and remind the union that the employer is willing to meet and confer over further details upon request.
With respect to providing home addresses, email addresses, and telephone numbers, what about an employee’s right to privacy? The bill makes mention that the provision of such information shall be consistent with the privacy requirements in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905. In that case, the California Supreme Court held that under the MMBA, a union has a presumptive right to employee contact information such as home addresses and telephone numbers. (Notably, personal email addresses and personal cell phone numbers were not an issue in the Los Angeles case.) The Court also held that with respect to the right of privacy, the balancing of interests favors disclosure to the union. But the Court did allow that the balancing of interests may “in some cases, tip in favor of privacy when an individual employee objects and demands that home contact information be withheld.” So what’s the bottom line? I think that there can be an opt-out process put in place to prevent some of this information from being provided to the union if the employee objects. The op-out process, or at least some aspects of it, will likely be subject to negotiations with the union. It’s a delicate balance and an area where legal counsel should probably be consulted.
Bills Currently being followed closely by PORAC
AB 748 (Ting) was introduced earlier this year relating to video and audio recordings of peace officers. In its original form, it simply mandated that each agency or department must create body cam policies and make those policies public. It posed no threat to law enforcement as it sailed through the Assembly. It wasn’t until the bill was set to be heard in Senate Public Safety Committee that significant amendments were presented. The sponsors - the California Newspaper Publishers Association, California Attorneys for Criminal Justice and California Public Defenders Association - are now seeking to make changes to the California Public Records Act (CPRA) that would be very harmful to all law enforcement, including creating a deadline of 120 days for the release of all video, regardless of whether there is still an active, on-going investigation, disallowing the use of redaction technology to obscure specific portions of a recording for law enforcement purposes, and prohibiting the use of biometric technology on a video. AB 748 is in the Senate Rules Committee awaiting referral to the next committee.
AB 284, as amended, McCarty. Attorney General: officer-involved shootings: independent review. Department of Justice: officer-involved shootings: report.
Existing law authorizes a peace officer who has reasonable cause to believe that a person to be arrested has committed a public offense to use reasonable force to affect the arrest, to prevent escape, or to overcome resistance.
Existing law requires each law enforcement agency to annually furnish to the Department of Justice, in a manner defined and prescribed by the Attorney General, a report of all instances when a peace officer employed by that agency is involved in any of specified incidents, including an incident involving the shooting of a civilian by a peace officer or an incident involving the shooting of a peace officer by a civilian.
This bill would, contingent upon the appropriation of funding by the Legislature, require the Department of Justice to conduct a study of all or a sample of peace officer-involved shootings resulting in death or serious injury that occurred in California between January 1, 2015, and December 31, 2016. The bill would require the department to prepare a written report describing its findings and recommendations and make the report available to the public.
I will continue to be a voice for all of you at the State level through our PORAC representation, which is the most, sought after and respected voice for law enforcement at the State Capital of California. Thank you to those of you who reach out to me on a consistent basis regarding these types of bills and offer your input. That is all taken back to our lobbyists and PORAC.
Shift Signups:Tentative date for shift signups has been set for Wednesday, October 18, 2017 at around 8am. There will be more to come on this as we get closer. Those of you signing up, I wanted to give you the tentative date in which FDSA and FSO Management have discussed.
Insurance open enrollment is scheduled for November 1 through November 30. We will be sending out a letter shortly to all the members explaining the rates and benefit changes for the upcoming 2018 plan year. The good news – your rates will be going down! This will be the third year in a row the FDSA health insurance rates are going down, meaning less cost to our employees and more money in your paychecks. I will have a thorough article next month explaining all of the FDSA insurance rates and benefits.
Take care of each other in whatever assignment you are in.