Judge Dismisses Deputy Sheriffs Lawsuit Against Four Contra Costa Board of Supervisors

On Tuesday, a Northern California judge has dismissed the Deputy Sheriffs Association lawsuit against the Contra Costa County Board of Supervisors.

The Contra Costa County Deputy Sheriff’s Association complaint alleged that Contra Costa County and four members of the County Board of Supervisors violated their First Amendment rights by making threats in retaliation for Plaintiff’s participation in a petition drive to overturn a Supervisor salary increase passed by the Board of Supervisors.

The Complaint also alleges a violation of the Meyers-Milias-Brown Act which was dismissed by the judge.

Update:  In an email from Jim Bickert, the DSA is reserving comment at this time, however, says that the motion was dismissed “without prejudice”, which means that the DSA has an opportunity to amend their complaint for further consideration by the court.  The DSA will be doing that.

According to the court document,

The DSA allege that Supervisor Mary Piepho threatened the former president of the DSA as a result of the Association’s involvement in the petition drive, stating that Plaintiff had “made a bad decision and it is not going to end well for you guys.”

The document further states that Supervisor Piepho also allegedly told Plaintiff’s representative that its members’ working conditions were something that Defendants “can always make worse..” .

The Complaint further alleges that during two public meeting of the Board of Supervisors, Piepho mentioned bringing “Chuck Reed type pension reform” to the County, which Defendants understood as “an alteration in pension and retirement benefits provided to most California public employees, including members of the Association, characterized by substantial reductions in the value of such benefits.

Additionally, the complaint alleged that Supervisor Karen Mitchoff alluded to the possibility of “Chuck Reed type pension reform” on two occasions: once to members of the United Professional Firefighters Local 1230 Union, and later during a telephone call with a business agent hired by DSA.

Mitchoff also allegedly said the DSA was “stupid” if they thought the petition drive would turn out well for them; that although the Board of Supervisors had previously intended to increase the compensation of Plaintiff’s members, this would no longer happen due to the petition; and that she had nothing to lose by “coming after” Plaintiff, explaining: “I’m only going to be around for the next four or eight years. But the DSA is going to suffer for many years to come.”

Here is a sampling of the courts decision in the 17-page document.

II: Plaintiffs First Amendment Retaliation Claim

In this case, the Complaint alleges that Defendants have engaged in nothing more than threatening speech. The County Board of Supervisors has not formally proposed any legislation or undertaken any vote that might negatively impact Plaintiff’s members. Furthermore, negotiations between the Parties regarding future labor contracts have not yet begun. Instead, according to the Complaint, two members of the Board have made threats regarding future contract negotiations, and issued harsh, but ultimately hollow, words regarding pension reform. Until the Ninth Circuit invalidates Nunez in its entirety, these allegations are insufficient to meet the adverse employment action requirement for a First Amendment claim brought by public employees against their employer. Accordingly, Plaintiff’s First Amendment claim is DISMISSED WITHOUT PREJUDICE.

III: Sufficiency of Complaint Regarding Defendants Gioia and Glover

It is undisputed that Defendants Gioia and Glover did not personally participate in any of the conversations at issue in this case. Instead, Plaintiff predicates their liability upon a theory of conspiracy. However, Plaintiff’s factual allegations regarding the conspiratorial conduct between Defendants Gioia and Glover and Defendants Piepho and Mitchoff amount to nothing more than the terms used in the latter’s threats: “we,” “Board of Supervisors,” “supervisors,” “county supervisors,” and “all on board.” Compl. ¶ 21, 24, 27. Such allegations are “merely consistent” with a claim of liability, and therefore stop short of the “line between possibility and plausibility of entitlement to relief.”

…

In order to bring a viable claim against Defendants Gioia and Glover, Plaintiff will need to do more than make conclusory allegations loosely supported by third party threats. The Court recognizes the difficulty of such an undertaking before access to discovery. Nonetheless, this is the burden imposed upon all plaintiffs by Twombly and Iqbal. Therefore, in addition to the general insufficiency of Plaintiff’s First Amendment claim as provided above, the suit against Defendants Gioia and Glover is DISMISSED WITHOUT PREJUDICE on these grounds.

Therefore, in addition to the general insufficiency of Plaintiff’s First Amendment claim as provided above, the suit against Defendants Gioia and Glover is DISMISSED WITHOUT PREJUDICE on these grounds.

IV: Immunity

Defendants allege legislative immunity both for the threat of pension reforms and the threat of taking a hard line in future contract negotiations regarding employee pay and benefits. Mot. at 13-15. The Court finds legislative immunity does not attach to the threat of pension reform, but does attach to the threats regarding contract negotiations.

Legislative Immunity Does Not Protect Defendants’ Pension Reform Threats.

When the named Defendants threatened “Chuck Reed type pension reform,” they were not engaged in a legislative act, as is required to claim the protection of legislative immunity.

The Court is similarly unconvinced by Defendants’ argument that they should be immune because they might later endorse or advocate statewide pension reform. Mot. At 13; Reply at 9. There is no indication that Defendants were engaged in statewide pension reform advocacy when these threats were made, and absent such evidence, the immunity provided to legislative advocacy does not apply.

Legislative Immunity Protects Defendants’ Negotiation-Related Threats.

As in Schmidt, the negotiation of a collective bargaining agreement, and to a greater extent the act of pre-negotiation policy positioning, is discretionary, and “implicates budgetary priorities and the provision of services” within the County. Id. Consequently, comments that position the Board of Supervisors even before formal negotiations begin are protected by legislative immunity.

Immunity under the Speech and Debate Clause

The pension reform comments made during Board meetings were not made “in the process of enacting legislation.” See id. As is explained above, the fact that the Board has no authority to enact pension reform disqualifies such threats from being within “the sphere of legitimate legislative activity.” Tenney, 341 U.S. at 372-73. Furthermore, there is no evidence that Defendants were engaged in legislative advocacy for pension reform when such threats were made. Accordingly, those threats are not protected by the Speech and Debate Clause

Immunity under the Noerr-Pennington Doctrine

As already discussed, the Board does not have the authority to enact pension reform, so the individual Board members could not have been lobbying each other for the passage of such reform measures. There is also no evidence that Defendants were lobbying their constituents or the state legislature to enact pension reform. Therefore, an immunity doctrine that protects public officials’ attempts to“intercede, lobby, and generate publicity to advance their constituents’ goals” is inapplicable given the facts presently before the Court. See id. Defendants’ argument here is anticipatory: it looks to the possibility that Defendants might lobby for pension reform in the future and asks the Court to find immunity for past behavior as a result. See Mot. At 17. The Court declines to do so, as it must determine the application of immunity to what Defendants have already done, not what they might do at some later date. The Noerr-Pennington Doctrine is therefore inapplicable

The Meyers-Milias-Brown Act Claim

Plaintiff’s MMBA claim is not ripe, as the Act only requires Defendants to meet and confer in good faith regarding the creation of binding employment agreements, and the time for negotiations between Plaintiff and Defendants has not yet arrived. See Coachella Valley Mosquito, 35 Cal. 4th at 1083. Until Defendants make a unilateral change to the employment conditions specified in the current labor contract between the Parties, or fail to meet and confer in good faith regarding a future labor contract, there is no “actual and imminent” MMBA violation.

The Court is also not convinced that Plaintiff has been prevented from representing its members, or that it is otherwise impossible for Defendants to engage in good faith future negotiations as a result of the alleged threats.

Accordingly, Plaintiff’s Meyers-Milias-Brown Act claim is DISMISSED WITHOUT PREJUDICE, allowing Plaintiff the opportunity to allege some present or immediate, noncontingent violation of the Act in an amended complaint

Relief Sought
Declaratory Relief’

As previously explained, there is no immediate controversy. Defendants cannot unilaterally enact pension reform, and the Court has been provided no evidence that the Parties are set to meet and confer about DSA members’ employment conditions in the immediate future. If contract negotiations were in progress and Defendants continued to issue the threats alleged, then declaratory relief might be more appropriate. These are the not the factual circumstances before the Court. Further, Plaintiff’s request for declaratory relief specifically seeks a declaration that Defendants’ past conduct was a violation of Plaintiff’s rights. Compl. at 10:15-18. As explained above, this is incorrect. Accordingly, declaratory relief is not available under the current Complaint.

Injunctive Relief

To be entitled to injunctive relief, a plaintiff must demonstrate that they face irreparable injury that is real, immediate, and direct – not “abstract,” “conjectural,” or “hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983). Because the Complaint fails to allege that Defendants have taken any adverse employment action, or that Plaintiff faces any immediate and direct threat of irreparable harm absent the intervention of this Court, Plaintiff is not entitled to injunctive relief on the present facts. As explained by Defendants, Indio Police Command Unit Ass’n v. City of Indio is inapposite, as the defendant in that case had already violated its meet and confer obligations under the MMBA. 230 Cal. App. 4th 521, 539-40 (2014). Here, Defendants have not yet violated their duty to negotiate in good faith, and there is no direct and immediate threat of such violation where negotiations will not take place for more than one year.

CONCLUSION
For the reasons articulated above, the Court hereby ORDERS that Plaintiff’s First Amendment and MMBA claims are DISMISSED WITHOUT PREJUDICE. Additionally, all claims against Defendants Gioia and Glover are DISMISSED WITHOUT PREJUDICE. Finally, the Court takes judicial notice of the facts conntained within Exhibits B and C that describe the timeline for contract negotiations between the Parties.   Accordingly, the hearing on this matter currently set for March 30, 2015, is hereby VACATED.   Plaintiff is granted leave to amend, and shall file an amended complaint on or before April 14, 2015. Failure to file a timely amended complaint shall result in dismissal with prejudice of all causes of action and termination of this case.

Here is a look at the 17-page decision: [20] 3-24-15 Order Granting Defs MTD(1)