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Ontario Policies Unconstitutional
By Dieter C.
Dammeier
LACKIE & DAMMEIER
LLP
Adding to the continuing pattern by the City of Ontario in
its treatment of its employees, two separate courts have held, in separate
matters, that policies of the City of Ontario are unconstitutional. Both
policies involve the City’s disciplinary appeal process. These cases are
examples of management’s desire to have unchecked decision making in
regard to employee discipline. Fortunately, at least in Ontario, this
desire was not achieved.
This first case involves police dispatcher Monica
Jennings. In 1993, Jennings was hired as a dispatcher with the City of
Ontario. In 1998, City management pushed forward and had adopted by the
City Council an ordinance making certain employees in the City, including
Jennings’ position, “at will.” This, of course, deviated from the City’s
long-term policy, as well as state and federal law, that provide permanent
public employees a property interest in their jobs, requiring “good cause”
for their removal.
In January of 2003, Jennings was terminated. The City
claimed that it did not have to provide “good cause” or in any manner
justify her termination because she was “at will.” It’s only reliance for
its position was it’s self-enacted ordinance that purportedly made
Jennings’ position “at will.” Unfortunately for the City, the City’s
attorney was apparently unaware of Government Code §45007 that provides
permanent public employees with civil service protection unless a local
election is held in which two-thirds of the voters vote to exclude city
employees from such protection. Of course, Ontario never had such an
election.
Rather than conceding that it’s ordinance was invalid and
reinstating Jennings to her position, the City forced us to take the
matter to Superior Court. Not surprisingly, the Superior Court overturned
Jennings’ termination, based on the City’s invalid ordinance and ordered
the City to provide Jennings all rights afforded a permanent employee,
should they wish to terminate her employment.
In a second case involving Ontario, the City had another
policy, also found to be unconstitutional. This policy involved the
requirement that an employee appealing disciplinary action pay for one
half of the costs of such appeal, including the arbitrator’s fees. As
those who have participated in such proceedings know, these expenses may
run in the thousands of dollars. The obvious intent was to provide a
disincentive to employees to challenge disciplinary action. April Florio
was involved in such a disciplinary appeal. Here too, the Ontario City
Attorney was apparently unaware of the law, in this case California
Supreme Court precedent, where it has been clearly held that cost sharing
provisions for disciplinary appeals impose a “chilling effect” on
employees due process rights and are therefore unconstitutional.
California Teachers’ Assn. v. State of California (1999) 20 Cal.4th
327.
The City made an argument that since the bargaining unit
representing Florio agreed to such cost sharing, Florio should be bound by
it. The City’s argument fell short. As the Court agreed, an employee’s
bargaining unit may not waive the due process rights of its members.
Phillips v. State Personnel Board (1986) 184 Cal.App.3d 651.
The above are two examples of the current treatment police
employees receive in the City of Ontario. Recently, Lackie & Dammeier has
also handled two termination cases of police officers that were overturned
with the officers being returned to work (previously reported in the PORAC
News). Additionally, we are currently in litigation representing several
officers in the Department in seven different cases involving employee
rights. These cases involve management’s secret placement of video
recorder in the men’s locker room, obtaining private text messages between
employees (on two way pagers), failure to pay required FLSA overtime and
retaliation for the Department taking adverse action against officers who
have the courage to question or challenge these unlawful activities. With
its treatment of employees, it is no wonder why management is scratching
its head asking itself why Ontario is not considered one of the top-notch
agencies to work for as it had been in the past. The answer is simple.
Look in the mirror.
About
the author: Dieter C. Dammeier is a LDF panel attorney and partner at
Lackie & Dammeier LLP, representing police officers and associations
throughout Southern California. |
