CLIENT ALERT MEMORANDUM
January 15, 1999
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
1. California Rifle and Pistol Association v. City of West Hollywood
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Last week the California Supreme Court refused to consider a challenge to a West Hollywood ordinance banning the sale of cheap handguns known as “Saturday Night Specials.” This case began in 1995 when the City of West Hollywood adopted an ordinance (which has since been duplicated by approximately forty other cities) prohibiting the sale of Saturday Night Specials within the city. The primary issue before the court was whether the state had pre-empted the field regarding the sale and licensing of guns. Although the lower court ruled that preemption existed regarding registration or licensing requirements, the state did not forbid local regulation of gun sales.
This firm, as special counsel to the California Police Chief’s Association (CCPA) and the California Peace Officers Association (CPOA), worked in conjunction with others in the development of an amicus brief supporting the right of the City of West Hollywood (as well as the other California cities involved) to adopt such legislation. In reporting the decision of the Supreme Court, an article in the Los Angeles Daily Journal specifically identified the California Police Chief’s Association as one of the amici supporting the West Hollywood position. This, once again, shows the impact of both CPCA and CPOA when they take positions, in the courts, on issues of significance to law enforcement.
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2. Fair Labor and Standards Act
In 1993 a lawsuit was filed on behalf of 6,318 LAPD Officers claiming that the City violated the Fair Labor Standards Act (FLSA) by delaying payment of overtime. Although the City argues an that exemption allowed it to delay those payments, recent newspapers articles have indicated that both sides are attempting to resolve the matter. The plaintiffs’ attorney alleges that the City owes the officers $40 million, but the City argues that it is only $37 million which is owed, if any amount is owed at all.
Last week, a second lawsuit was filed on behalf of thousands of LAPD officers alleging that, in addition to their failing to pay overtime in a timely fashion, the City has denied officers the right to utilize compensatory time off (CTO) which was taken in lieu of overtime payment. Under FLSA overtime for police officers is based on a twenty-eight day deployment period and any work done within that period, in excess of 171 hours, is considered overtime. Under FLSA, overtime earned during a pay period must be paid to employees when they receive compensation for that regular pay period. The new lawsuit claims that the Police Department policy prohibits officers from using FLSA overtime except when the Department permits it which, they allege, is not very often. The Department of Labor has in the past issued opinions indicating that FLSA CTO is virtually “at will” time off. As long as the employee gives “reasonable” notice the employer cannot prohibit the employee from using compensatory time off taken in lieu of being paid cash for the overtime previously worked.
This office has urged, and will continue to urge, our clients to implement FLSA “by the book.” If mistakes are made, even in good faith, “liquidated damages” are articulated in the law and will be awarded and are equal, at least, to the original amount of overtime pay due and owing. Questions regarding the application of FLSA should be presented to, and discussed with, the department’s legal advisor before any action is taken.
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3. Internal Affairs Investigations
It has become apparent over the course of the last year that the employer’s obligation to conduct an appropriate investigation of alleged misconduct is of increasing importance. In a number of cases involving alleged sexual harassment, decisions affecting both the public and private sectors emphasize the obligation of the employer to conduct an appropriate investigation. Several civil cases have also addressed this issue when dealing, specifically, with law enforcement agencies. In those cases it appears that the obligation, and the responsibility to conduct such an investigation, may be even greater than in other areas due to the nature of the role of the peace officer.
As an example of that, there have been a series of recent newspaper articles alleging that the California Department of Corrections conducted inadequate investigations of alleged use of excessive force by correctional officers at the Corcoran and Pelican Bay prisons. The newspaper articles primarily challenge the procedures utilized. As such, the Department of Corrections has been engaged in an extensive review and analysis of the manner in which internal affairs investigations are conducted. Legislative action has also occurred which will affect this process.
As part of that process, this firm was recently retained by the State of California to serve as a special consultant to the Director of the Department of Corrections. Matters involving the methods and procedures used in administrative and/or criminal investigations of alleged misconduct by correctional officers will be reviewed and revised, when necessary. The current Director of the California Department of Corrections has already implemented changes regarding internal affairs investigations.
It is imperative that all law enforcement agencies recognize that the handling of complaints regarding alleged misconduct by peace officers must be conducted in a fashion which protects all parties involved, including the accused officer. As always, it must be remembered that a mere accusation is not a finding of fact and the manner in which law enforcement agencies conduct that fact finding process will continue to be scrutinized and evaluated. As we have pointed out for many years, it is necessary to provide training to those who will conduct internal affairs investigations since the rules and regulations governing such investigations are substantially different from the rules and regulations governing the conduct of criminal investigations.
It is strongly recommended, therefore, that in these particular areas advice and guidance be sought by the Chief or Sheriff from his or her appropriate legal counsel. The complaint that violations of the Peace Officer’s Bill of Rights occurred during the investigation are almost universally alleged on behalf of the disciplined officer. Attempts have also been made to take those complaints into the federal courts alleging civil rights violations by the government employer. Advice and guidance from legal counsel, therefore, is of much greater importance in this area than one would normally think, since it is necessary now to anticipate those, as well as other, types of challenges.
As always, we urge that before you take any legal action that you confer with your city attorney, county counsel, or police legal advisor. In addition, if you, or they, have any questions or wish to discuss this in greater detail, please do not hesitate to call. We urge that you share this memo with your department counsel.
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[THE LAW OFFICES OF MAYER & COBLE, located in Long Beach, limits its practice to representing cities, counties and the State as legal advisor to their police and sheriff’s departments. Mr. Mayer was, for 10 years, the State Chairman of CPOA’s Police Legal Advisors Committee. He currently serves as counsel to the California Police Chief’s Association, the California State Sheriff’s Association and the California Peace Officers’ Association.]
MJM/pmb
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