The Los Angeles County Sheriff’s Department revised its Manual of Policies and Procedures to include this language: “Prior to being interviewed by assigned departmental investigators, members who are either involved in or witnessed a deputy-involved shooting may consult individually with legal counsel or labor representatives but shall not consult with legal counsel or labor representatives collectively or in groups.” The new rule was immediately termed the “no-huddling” rule. The Association for Los Angeles Deputy Sheriffs filed a lawsuit, seeking an injunction preventing the Department from implementing the anti-huddling policy provision. The California Court of Appeals rejected the request for an injunction.
The Court found that the Association was not likely to prevail in its claim that the anti-huddling policy violated the state Public Safety Officers Procedural Bill of Rights Act. The Association focused on Section 3303 of the Bill of Rights, which allows officers who are facing an investigation on matters likely to result in punitive action to have the right to be represented by a representative of his or her choice.
The Court found that a police agency has the right to place “reasonable” limits on a police officer’s statutory right under the Bill of Rights to consult with counsel. The Court found that “the Department’s anti-huddling policy revisions expressly protect a deputy’s right to meet with counsel individually. The objective of the policy is to assure the collection of accurate witness accounts before the recollection of witnesses can be influenced by the observation of other witnesses. After a deputy’s initial interview, he or she may engage any lawyer that he or she desires and may have any type of relationship with that lawyer (individual or communal) that he or she desires. Juxtaposing the limited and temporary qualification on a deputy’s right to counsel under the Department’s anti-huddling policy against the rational objectives of that policy, we cannot say the Department’s policy revision is unreasonable as a matter of law.”
The Association also argued that the implementation of the anti-huddling policy breached the County’s collective bargaining obligations under state law. The Court rejected the Association’s argument: “The Association alleges that the right of the Department’s deputies to huddle with counsel is a working condition because it has been a consistent and established practice for over 25 years. The problem we see with the Association’s argument is that it has not shown us any provision in the parties’ memorandum of understanding which defines working conditions to include consistent and established practices. For this reason alone, the Association has not shown that it is likely to prevail on its bargaining claim under state law. Is the Department’s need for unencumbered decision-making and managing its operations outweighed by the benefit to employer-employee relations of bargaining about the action in question? We answer this question yes. The deputies’ working condition claim is tenuous, and the Department’s interest in public accountability is significant on its face.”
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 83 Cal.Rptr.3d 494 (Cal.App. 2008).
NOTE: The Court’s holding on the relationship between a “past practice” claim and a collective bargaining agreement (in this case a memorandum of understanding) runs against the usual rule in such cases. The Los Angeles County court seems to have held that for a past practice to be binding, it must be incorporated into the terms and conditions of a contract. The usual rule is to the contrary – that unless a contract expressly waives a past practice, it is enforceable through the collective bargaining laws.
This article appears in the November 2008 issue