CLIENT ALERT MEMORANDUM
October 25, 2000
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
Re: LABOR CODE SECTION 96(k)
We are pleased to inform you that on October 10, 2000, the Office of the Attorney General issued an official opinion regarding the recent amendment to Labor Code Section 96 (A.G. Opinion No. 00-303). Labor Code Section 96(k) states that the Labor Commissioner shall “. . . take assignments of claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during non-working hours.” The issue raised by this amendment focuses on whether that would prevent law enforcement agencies from continuing to impose discipline upon peace officers for otherwise lawful off-duty conduct, such as consorting with known criminals or participating openly with hate organizations (e.g. Nazi party, Klu Klux Klan, etc.)?
The Attorney General has opined that Labor Code Section 96(k) does not “. . . abrogate existing law that permits the disciplining of peace officers for off-duty conduct occurring away from their place of employment that is otherwise lawful but conflicts with their duties as peace officers.”
We are obviously pleased that the opinion of the Attorney General is consistent with that which we submitted to his office, at his request, on behalf of the California State Sheriffs Association and the California Police Chiefs Association. Prior to his drafting Opinion No. 00-303, in April, 2000, we submitted a legal opinion to the Attorney General stating, in part, that “in the absence of an expressed intent by the Legislature to overturn existing case law regarding the discipline of peace officers for off-duty conduct, Labor Code Section 96(k) should not be interpreted to have that effect. To interpret Labor Code Section 96(k) to have that effect would be inconsistent with established principles of statutory construction.”
Although the Attorney General has issued an opinion which is favorable to law enforcement management’s ability to continue to hold peace officers to a higher standard of conduct than other public sector employees, it is important to recognize that this matter is still subject to challenge by labor associations.
Among other things, the Attorney General did state that the “. . . enactment of subdivision (k) is consistent with the primary function of section 96 to supply an additional means of enforcement of rights already established elsewhere . . . ” It would appear that the ability of an employee to submit a claim to the Labor Commissioner, and have the Commissioner act on behalf of the employee in challenging that type of discipline, now exists. The Attorney General states that although Section 96 established no new “substantive rights” for employees, “. . . it established a procedural mechanism that allows the Commissioner to assert, on behalf of employees, their independently recognized constitutional rights.” This obviously raises the specter that matters of discipline will be heard by the Labor Commission rather than municipal or county personnel boards, Civil Service Commissions, hearing officers, etc.
It was recently reported, in a law firm’s newsletter, that the chief counsel for the California Labor Commissioner, Miles E. Locker, stated at the annual conference of the Inland Area Personnel Management Association that the Labor Commissioner will, in fact, enforce Labor Code Section 96(k). Furthermore, it was reported that Mr. Locker commented that the amendment to the code prevents an employer from disciplining an employee for any off-duty lawful conduct regardless of the effect it might have on the employer. That opinion is obviously opposite to that expressed by the Attorney General on October 10, 2000.
This conflict, however, reinforces our concern, expressed above, that this matter is not yet settled. It is important to note that if this results in court litigation, an official opinion from the Office of the Attorney General is given “great weight” by the courts in deciding conflicting opinions regarding legal issues.
If any of you or your legal counsel wish copies of either the Attorney General=s opinion, or the opinion letter we submitted to his office in April, 2000, we would be happy to transmit copies to your attention via FAX.
As always, we urge that before you take any legal action which might be subject to challenge, in this case the imposition of discipline upon the peace officer for otherwise lawful off-duty conduct, that you confer with your designated legal counsel. If you or your legal counsel wish to discuss this matter in greater detail, please feel free to call Martin Mayer at (562) 590-8280.
*********
Vol.15#09.Website