September, 2013 - Riverside Sheriffs' Association
September, 2013 - Riverside Sheriffs' Association
September, 2013 - Riverside Sheriffs' Association
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Legal Corner<br />
The Conflict In Various Governmental Entities’<br />
Positions Relative To Eligibility for Disability<br />
Retirements And Re-Employment<br />
Scott O’Mara<br />
Law Offices of O’Mara & Padilla<br />
Throughout the state of California,<br />
there are typically three types of<br />
government bodies which administer<br />
retirement benefits for safety people<br />
- CalPERS; the County Employees’ Retirement<br />
System of 1937, called the County<br />
Employees’ Retirement Act of 1937; government<br />
entities created by certain municipalities<br />
which have their own systems.<br />
All these systems have had similar issues<br />
raised relative to eligibility for a disability<br />
retirement and whether that eligibility<br />
is impacted by an employer’s inability to<br />
accommodate an injured worker to allow<br />
him/her to return to their employment situation<br />
when one of the various retirement<br />
Legal<br />
Continued from page 11<br />
“citizen” and not as an employee; therefore<br />
the First Amendment protects the member<br />
from retaliation within his employment on<br />
account of his “protected speech.”<br />
The en banc 11-2 majority found in<br />
Dahlia’s favor on all three points. The<br />
opinion refers to the amicus curiae brief<br />
for support of the third proposition:<br />
“In its amicus brief, the <strong>Riverside</strong><br />
Sheriffs’ <strong>Association</strong> and <strong>Riverside</strong><br />
Sheriffs’ <strong>Association</strong> Legal Defense<br />
Trust support this chain-of-command<br />
distinction. See Amicus Br. at 2 (arguing<br />
that “a police officer’s speech on a<br />
matter of important public concern[<br />
] should only fall outside the scope of<br />
First Amendment protection if it is<br />
made pursuant to his or her routine<br />
or core duties, within his or her chain<br />
of command, and in pursuit of his or<br />
her duty to report misconduct to a<br />
superior.” (emphasis added by Court)).<br />
Slip. Op. at 29, fn. 14.<br />
Of course, the Dahlia Court had no<br />
evidence before it that Dahlia’s report to<br />
Issue 9, <strong>2013</strong><br />
systems has determined the worker indeed<br />
is not disabled from the performance of<br />
his/her substantial duties.<br />
The State Personnel Board has issued<br />
a decision regarding a law enforcement<br />
member and Government Code §1031 - a<br />
decision which has direct impact on state<br />
employees, and potentially will have<br />
an overflow impact on county and city<br />
employees. The worker involved is a<br />
California Highway Patrol officer who<br />
sought to return back to work as a peace<br />
officer. In the process of showing that he<br />
was no longer physically incapacitated<br />
from performing his usual and customary<br />
duties, he was placed in a situation where<br />
he had to prove not only that he met the<br />
CalPERS standard regarding the physical<br />
ability to return to work, but also could<br />
LASD was directed by his department.<br />
This circumstance could well have<br />
altered the opinion. Slip Op. at 35-36.<br />
However, the Court did find it significant<br />
that Dahlia’s superiors, in addition to the<br />
threats and intimidation, instructed him<br />
to not reveal the misconduct to anyone.<br />
“Even assuming arguendo, that Dahlia<br />
might normally be required to disclose<br />
misconduct pursuant to his job duties,<br />
here he defied, rather than followed his<br />
supervisor’s orders. As part of a “practical”<br />
inquiry, a trier of fact must consider what<br />
Dahlia was actually told to do.” Slip Op.<br />
at 31.<br />
In the context of the Dahlia facts as<br />
pleaded in the complaint, the Court found<br />
that involuntary placement on administrative<br />
leave could have a “chilling effect” on<br />
protected expression, because it reasonably<br />
could “deter employees from engaging in<br />
protected activity.” Id. at 37.<br />
Conclusion<br />
The Dahlia decision is certain to be reviewed<br />
and considered by federal trial and<br />
appellate courts throughout the country,<br />
pass a psychological screening required<br />
of peace officer candidatespursuant to<br />
Government Code §1031. The officer<br />
underwent the testing and the results led<br />
to two different opinions - one opinion<br />
being that he could return to work, and<br />
the other being that he could not do so<br />
based on the psychological screening.<br />
CalPERS determined independently<br />
that the officer was no longer incapacitated<br />
from performing his substantial<br />
duties and therefore approved his<br />
reinstatement from the industrial disability<br />
retirement. CalPERS’ position was that<br />
the officer had mandatory rights to his<br />
former position. It should be noted that<br />
the officer obtained a second opinion from<br />
as establishing a well-reasoned framework<br />
for applying the Garcetti holding to law<br />
enforcement whistleblowers who bring<br />
claims under the First Amendment for<br />
retaliation.<br />
Friends of Harvard: The Ninth Circuit,<br />
sitting as the full Court, just decided a<br />
very important case for peace officers’<br />
constitutional rights. We participated in<br />
this case as Amicus Curiae (“friends of the<br />
Court”). We are publishing an analysis,<br />
and we thought you all would like to see it<br />
before it goes to publication.<br />
Stay Safe!<br />
Mike Stone<br />
See Legal on page 13<br />
Michael P. Stone and Muna Busailah and are<br />
the founding partners of Stone Busailah, LLP<br />
and participated in the Dahlia v. Rodriguez<br />
decision as amicus curiae.<br />
1<br />
Of course, this is no longer the law.<br />
The U.S. Supreme Court’s decision in<br />
Garrity v. New Jersey 385 U.S. 493 (1967)<br />
and its progeny have made it clear that a<br />
public employee cannot suffer the loss of<br />
public employment on account of the valid<br />
exercise of constitutional rights.<br />
Page 12 • All Points Bulletin