Public Employment Lawyer

Sam Wells has had many years of high-level experience representing public employees throughout California. We are proud to welcome him as the newest attorney and co counsel, advocating on behalf of our public sector employees. Sam’s first case with our firm involves a classic whistle blower case, where we are alleging the client was retaliated against and ultimately terminated for complaining about under-reporting of hours worked to CALPERS. We look forward to working with you on your public employment matter. Government Code whistle blowers, discrimination based on age, sex, race, national origin, physical and mental conditions are our strong suit. Let Sam and SD&A help you.

There are very important legal deadlines that must be met, in public employment cases. Please contact us immediately for a free consultation so that we can advise you of these deadlines based on the information you give us.

From time to time, we blog and/or add content regarding important developments in public employment in California. On October 22, a new case, Cornejo vs. Lighbourne, NO C070704 (3d District) held that California public employees who file claims under the California Whistleblower Protection Act (Gov Code 8547) (“WPA”)are not required to first file a government tort claim under Government Code 900-915.4 and 945.4. This tort claim is generally required to be filed before a claim (think of a car accident caused by allegedly defective road maintenance or design) is filed against the State of California. There is a six month time period in which to file this tort claim.

However, the court held in this case that a public employee seeking recovery under the California Whistle blower Protection Act, no such tort claim was required since the Whistleblower Act had its own “functionally equivalent claims process” In citing to an earlier case, Braun vs. Bureau fo State Audits, 67 Cal.Ap4th 1382 (1998) the court found that teh state auditor had extensive procedures to investigate the facts of the claim, the theories and the amount of damages being claimed to have been lost by the state. As such, there was no need for the claimant to exhaust both the state tort claims act and the WPA administrative remedy. As long as the WPA administrative remedy was sought within 12 months, it is timely and sufficient.

Significance of this case: Any public employee who asserts a violation of the WPA need not worry about filing a tort claim against the public entity. The tort claim has a shorter time period (six months) and could lead to confusion among agencies as to who has jurisdiction. Further, contradictory “findings” might occur, leading to further court declaratory action.

We are reporting today on the recent case of Dahlia vs. Rodriquez, in which the Ninth Circuit held that the officer involved was allowed the right to move forward to trial on his claim that he was retaliated against for exercising his free speech rights, a violation of 42 U.S.C. Section 1983. Here, the public police officer disclosed misconduct of his fellow employees. The Ninth Circuit revised the case of Pickering vs Bd of Education (a US Supreme Court case) and asks five key questions:

1. Did the officer speak out on a matter of public concern/

2. Was he speaking as a police officer or private citizen/

3. was the protected speech a substantial or motivating factor in the adverse employment action;

4. did the state have an adequate justification for treating this employee differently from other members of the public;

5. whether the state would have taken the adverse employment action even if absent the protected speech.

Public Safety Officers such as the California Highway Patrol often-times find themselves unable to perform the 14 basic job duties of a sworn CHP officer. These include such matters as sprinting 50 yards, vaulting a 3 foot barrier; extracting a 200 pound victim from a car,rhen carrying them 50 feet; running 20 yards up a 40% grade; subduing and handcuffing a combative subject after a 100 yard chase; changing a flat tire and other similar tasks. What if an officer, unable to perform all of these tasks, is assigned a “light duty” position and then applies for retirement (CalPers) benefits? Should the application be denied since the officer can perform all of the duties of the currently-assigned position but few if any of the required duties for an officer?

Today’s case of Beckely vs. CalPers, 2013 DJDAR 16855, has answered that disability benefits must be awarded since the office is unable to perform the “usual and required duties of a full time CHP officer. There is no entitlement to a permanent “light duty” assignment. In this case Perry Beckley was assigned to Public Affairs Officer but later applied for disability retirement benefits. CalPers denied the application, claiming that the officer could do the “usual and customary” job duties of a Public Affairs Officer.

The Court of Appeals, agreeing with the trial court, held that the application for disability benefits should have been granted. CalPers was wrong to have judged his ability to work based on his ability to perform only as a public affairs officer, which rarely involved any of the strenuous 14 required duties. The court noted that under Vehicle Code section 2268, a member of the CHP shall be able to fulfill the complete range of official duties and other critical duties necessary for preservation of life and ;property. Citing a prior case (Thelander vs City of El Monte, 147 CA3d 736), which held that an applicant attending training, who was terminated for inability to complete the academy, the court cited with approval (and in italics) the following admonition: “If every officer must be capable of and prepared for the worst everyday, then that is a ‘usual’ duty of the job.”

The Beckley case is cited as an example of the unusual rules which pertain in determining the rights of a public employee. A public empoyee is entitled to a fundamentl, vested right to a disability pension if he or she is actually disabled. The CalPers laws are to be liberally construed in favor of our client, the employee. We at SD & A will continue to advocate forcefully on behalf of our government employees.