On January 1, 2011, the Orange County, California Sheriff issued an order that an employee who was under investigation for misconduct would no longer be permitted access to the Department’s internal affairs investigative file before being interviewed by an internal affairs investigator. The Association of Orange County Deputy Sheriffs challenged the order in court, alleging it violated both the state’s collective bargaining law and the Association’s memorandum of agreement (California’s equivalent of a contract) with the County.
The California Court of Appeals rejected the lawsuit, and found that the Sheriff’s order was a management right not subject to the bargaining process. The Court found that “the withdrawal of preinvestigative interview access to the investigative file was ordered to ensure the integrity and reliability of future internal affairs investigations and to bring the Department in line with what is considered to be the ‘best practice’ in conducting internal affairs investigations. The change in practice implemented by the Sheriff’s order, therefore, squarely falls into the category of a fundamental managerial decision falling within the Department’s freedom to manage its affairs unrelated to employment.”
The Court also found that “the Sheriff’s need to withdraw preinvestigative interview access to the investigative file is not outweighed by the benefit to employer-employee relations of bargaining about that change in practice. Even were we to assume the Sheriff’s order constituted a fundamental managerial or policy decision that significantly and adversely affected working conditions, the Sheriff’s need for unencumbered decision-making to ensure the integrity of the Department’s internal affairs investigations of alleged misconduct is not outweighed by the benefit to employer-employee relations of bargaining about the action in question.”
The Court largely based its decision on the testimony of two supervisors: “In her declaration, the Department’s Captain Linda Solorza stated the Department’s practice of providing preinvestigative interview access to the investigative file interfered with the internal affairs bureau’s ability to conduct prompt, thorough, and fair investigations into peace officer misconduct. Solorza believed that evidence showed the preinvestigative interview access practice did not promote truthseeking and was inconsistent with techniques employed by the Department in other kinds of investigatory interviews. According to Solorza, providing such access threatened to color the principal’s recollection of events or ‘lead that person to conform his or her version of an event to that given by witnesses already questioned.’
“In his declaration, the Department’s Lieutenant Jeffrey Hallock, who had served as a sergeant in the Professional Standards Division, stated the Department’s practice created the temptation for a principal or witness ‘to conform his or her statements to the statements of others to either protect the witness’s colleagues, or to protect himself or herself.’ Solorza added in her declaration: ‘If the principal under investigation does not know the sum total of what the Internal Affairs investigator knows, the principal will have more reason to be truthful and forthright when responding to the investigator’s questions. This would also be the case in interviews with witnesses. Witnesses are more often truthful and forthright when they know that the principal will not have access to the witness’s interview prior to the principal’s own interview. When the principal does not know what the interviewing Investigator knows, the Investigator is also better positioned to assess the principal’s credibility.’
“Solorza further stated in her declaration the Department’s practice particularly hindered investigations that involved more than one principal. For example, if one principal abruptly resigned after reviewing his or her investigative file but before his or her investigative interview, the Professional Standards Division would be unable to compel that principal to provide a statement regarding the conduct of the other principals under investigation. The completion of such investigations was delayed by principals seeking to review other principals’ investigative interviews before submitting to their own interviews.”
Association of Orange County Deputy Sheriffs v. County of Orange, 2013 WL 2571824 (Cal. App. 2013).
Note: California courts have long marched to the beat of a different drummer insofar as the negotiability of disciplinary procedures is concerned. In most states, a finding that a rule change impacted the disciplinary rights of employees would almost inevitably result in a conclusion that the change was subject to collective bargaining.