SAN DIEGO DEPUTY
DISTRICT ATTORNEYS
ASSOCIATION
Robert Hickey, President
330 W. Broadway, 9th Floor
San Diego, CA 92101
www.sdddaa.net
Steven Walter, Vice President
Cari Philpott, Treasurer
Chantal de Mauregne, Secretary
Bryn Kirvin, Director
David F. Williams III, Director
Jim Koerber, Director
Brenda Daly, Director
Patrick Ojeil, Director
Adam Gordon, Director
Shannon Welton, CSPA, Director
Employee Labor Rights & DDAA/LDF Representation
Frequently Asked Questions
April 2012
While nothing prohibits you from acting on your own behalf in labor relations, the DDAA Board
recommends against dealing with labor issues by yourself. Always call a DDAA Board member,
Richard Castle, or LDF with any questions. For instance, if you are ever drawn into a meeting in which
you suspect a potential disciplinary issue may be raised, take a timeout and contact a DDAA Board
member or Richard Castle immediately.
The following generally describes DDAA member labor rights and the types of situations in which
DDAA members are entitled to representation by the DDAA Board and/or legal services from the
PORAC Legal Defense Fund.
What function does the DDAA Board serve in labor issues?
The DDAA Board’s labor-related functions stem from federal and state law and are formally recognized
by the County in our Memorandum of Agreement with the County. Our labor relations with the County
are governed by the Meyers-Milias-Brown Act (MMBA), which is codified in Government Code section
3500 et seq. The MMBA recognizes the right of public employees to bargain collectively with their
employers over wages and other terms of employment. Per the MMBA, the DDAA Board is your
exclusive representative at least with respect to bargaining over the terms and conditions of employment
and the Association has a duty of fair representation. (Paulsen v. Local 856 of Internat. Brotherhood of
Teamsters (2011) 193 Cal.App.4th 823, 830.) This duty requires union representatives to refrain from
representing members arbitrarily, discriminatorily, or in bad faith. (Buck v. Amalgamated Transit Union,
Local 1704 (2007) PERB Dec. No. 1898-M.)
The DDAA Board may be involved in:
(1) Formal grievances, complaints, or issues relating to wages, hours, and working conditions.
Typically, these issues relate to the interpretation or application of the negotiated contract (or
existing wage, benefits and working conditions if no contract), or department/civil service rules.
Your concerns or questions relating to these areas should be brought initially to the attention of a
DDAA Board member; and
(2) Pre-disciplinary and disciplinary hearings; you have the right to have a DDAA representative
present at investigatory interviews. If you are concerned about potential discipline and are not
clear about your rights, you should contact a DDAA Board member immediately; and
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(3) Informal labor relations with the administration.
If you experience any labor-related issue, you are encouraged to reach out to a conflict-free member of
the DDAA Board who you know or feel comfortable with — it does not need to be your representative.
Contact with a DDAA Board member may be confidential, under most circumstances. (Cook Paint &
Varnish Company (1981) 258 NLRB 1230, 1232.) However, employees should avoid making threats of
any kind in the workplace, including threats of violence against oneself, because threats of violence can
remove any claim of privilege regarding communications with DDAA Board representatives.
Therefore, while members can expect discussions with their union representatives to remain privileged
and confidential, making threats or discussing criminal conduct will not remain confidential.
DDAA Board members understand the need to obtain authorization from you before discussing issues
you raise in confidence. The DDAA Board member may want to discuss your concerns with your
DDAA counsel, Richard Castle, and put you in touch with him. Sometimes your right to DDAA Board
representation and LDF legal services will overlap. The extent to which your DDAA Board provides
representation on matters outside the Legal Defense Fund, as further discussed below, is a determination
made by your DDAA Board.
What are the County/Office grievance procedures?
A grievance is defined as an allegation by an employee that the County has failed to provide a condition
of employment which is established by a resolution of the Board of Supervisors, the County Charter, by
ordinance, or by the MOA as adopted by ordinance, provided that the enjoyment of such right is not
made subject to the discretion of the appointing authority or the County. The procedure is as follows:
1.) An employee having a grievance shall first discuss it with his/her immediate supervisor and
endeavor to work out a satisfactory solution in an informal manner with such supervisor.
2.) If a satisfactory solution is not accomplished by informal discussion, the employee shall have
the right to consult with and be assisted by a representative of his/her own choice in this and all
succeeding steps of Paragraph C and may thereafter file a grievance in writing with his/her
immediate supervisor within seven (7) working days after the date of such informal discussion.
Within seven (7) working days after the receipt of any written grievance, the immediate
supervisor shall return a copy of the written grievance to the employee with his/her answer
thereto in writing. If the grievance is not resolved at this level, the employee shall have seven (7)
working days from receipt of the answer within which to file an appeal to the appointing
authority.
3.) An appointing authority shall have seven (7) working days in which to review, hold hearings,
and answer the grievance in writing. Unless waived by the mutual agreement of the employee or
his/her representative and the appointing authority, a hearing is required at this step and the
employee and his/her representatives shall have the right to be present at and participate in
such hearing. The time limit at this step may be extended by mutual agreement between the
appointing authority and the employee or his/her representative.
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The DDA Association may, in its own name, file a grievance alleging that the County has failed to
provide it some organizational right which is established by a resolution or ordinance of the Board of
Supervisors, by the County Charter, or by state law or by this Memorandum of Agreement as adopted by
ordinance, provided that the enjoyment of such right is not made subject to the discretion of the
department head or the County.
What are my rights to DDA Association representation in grievance matters?
California Government Code section 3504 states, “[t]he scope of [union] representation shall include all
matters relating to employment conditions and employer-employee relations, including, but not limited
to, wages, hours, and other terms and conditions of employment, except, however, that the scope of
representation shall not include consideration of the merits, necessity, or organization of any service or
activity provided by law or executive order.” This section is to be liberally construed. (International
Asso. of Fire Fighters Union v. Pleasanton (1976) 56 Cal App 3d 959.) Thus, the County has a duty to
meet and confer concerning all matters within the scope of representation of the Association. (City of
Fresno v. People ex rel. Fresno Firefighters (1999) 71 Cal App 4th 82.)
What can I be disciplined for?
According to the County of San Diego Disciplinary Guide, County/DA Office discipline of permanent
employees can take several forms: counseling, oral warning, written warning, a transfer to another
position, reprimand, suspension, demotion, removal, dismissal, or termination. Causes for discipline can
stem from: incompetency, inefficiency, insubordination, dishonesty, intemperance, immorality,
profanity, discourteous treatment of other employees or the public, a chronic physical or mental
disability, improper use of leave privileges, failure to pay debts, criminal conviction of a crime of moral
turpitude, damage or waste to County property, conduct unbecoming of an employee, inexcusable
absences, a violation of Charter or Civil Service Rules, conviction of a felony during a riot, exposing
other to risk of harm, failure of good behavior, or committing acts incompatible with public service.
What are the County/Office Disciplinary Procedures?
Allegations of misconduct from members of the public or co-workers can lead to disciplinary action.
Before any formal disciplinary action, the office will conduct an investigation, review, and evaluation.
The Special Operations Division ordinarily conducts our internal investigations. But Special Operations
is not permitted to initiate an investigation without authorization from the District Attorney, the
Assistant District Attorney, or a Deputy Chief. If the alleged misconduct warrants formal discipline,
Special Operations is ordinarily assigned to conduct an investigation. On the other hand, if the alleged
misconduct warrants only an informal reprimand, generally the employee’s division chief will handle
the matter.
An internal investigation includes an interview with the employee who is suspected of the misconduct,
which also provides the employee an opportunity to offer any defense, excuse, or mitigating
circumstances or evidence.i An investigator will prepare a report after the investigation is completed,
which contains the facts, witnesses, documents, any other evidence. The investigator will also make a
finding that the alleged misconduct was (1) Sustained (proven); (2) Not sustained (not clear); (3)
Exonerated (no violations committed); or (4) Unfounded (acts did not occur). The report (“the book”) is
provided to the Administration/Human Resources. The evidence must be evaluated under a
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preponderance standard. Three factors determine the type of discipline: (1) harm to public service; (2)
surrounding circumstances; and (3) the likelihood that the conduct or unsatisfactory work performance
will recur.
Before discipline can be imposed, the employee must be given an opportunity to review everything and
provide mitigating information through a “Skelly hearing,” which is a due process right.ii An employee
will receive a “Skelly letter,” which notifies the employee of the proposed discipline, the reasons, and
the opportunity to review and respond orally or in writing. A “Skelly conference” will then take place.
The employee is entitled to have a DDAA Board representative present. (Civil service Assn. v. City and
County of San Francisco (1982) 130 Cal.App.3d 357.)
An employee has the right to appeal to the Civil Service Commission an order of removal, suspension or
reduction in rank or compensation, which is governed by the County Civil Service Rules. An employee
does not have the right to appeal a reprimand or disciplinary transfer—they are subject to the formal
grievance procedures.
What are my rights to DDA Association representation in a potential disciplinary action?
The right of employees to have nion representation at investigatory interviews was announced in NLRB
vs. Weingarten, Inc. (1975) 420 U.S. 251. “Weingarten rights” only apply during investigatory
interviews. An investigatory interview occurs when a supervisor questions an employee to obtain
information that could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse consequences may result from
what he or she says, the employee has the right to request union representation. (See also Robinson v.
State Personnel Bd. (1979) 97 Cal.App.3d 994, 1001 [An employee has a right to the assistance of a
representative if an interview is being conducted with an employee who may become, or is, the subject
of discipline. This right exists “when a significant purpose of the interview is to obtain facts to support
disciplinary action that is probable or that is being seriously considered.”].)
Employees do not have the right to union representation if the meeting is only to tell them about
discipline that has already been decided or to give other direction. Management is not required to
inform the employee of his/her Weingarten rights; it is the employee’s responsibility to know and
request representation.
When the employee makes the request for a union representative to be present, management has three
options: (1) they can stop questioning until the representative arrives; (2) they can call off the interview;
or (3) they can tell the employee that it will call off the interview unless the employee voluntarily gives
up his/her rights to a union representative (an option you should generally refuse.)
The role of a union representative in an investigatory interview is not to simply observe the discussion.
A representative has the right to assist and counsel you during the interview. During an investigatory
interview management must inform the union representative of the subject of the interrogation. The
representative must also be allowed to speak privately with the employee before the interview. During
the questioning, the union representative can interrupt to clarify a question or to object to particular
interrogation tactics. While the interview is in progress the representative cannot tell the employee what
to say but he/she may advise them on how to answer a question. If necessary, a representative may ask
to meet with the employee privately to provide further advice. At the end of the interview the union
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representative can add information to support the employee’s case. One of the most vital functions of a
union representative is to prevent employees from feeling intimidated by management.
What is the benefit of DDA Association representation in a potential disciplinary matter?
Your DDA Association Board of Directors are available individually and collectively to meet and
consult with you about any labor issue. DDAA Board members often have past experience in discipline
matters and can provide information about what to expect, pitfalls, and tips on how to successfully
prevail.
Having a trusted DDAA Board member involved can be helpful in several other ways:
1.)
2.)
3.)
4.)
5.)
6.)
7.)
Help you explain to a supervisor what happened when you may be fearful and emotional.
Raise extenuating factors that you may not have thought about.
Advise you against blindly denying everything, thereby giving the appearance of dishonesty.
Help prevent you from making unhelpful admissions.
Stop you from losing your temper, and perhaps getting further disciplined for insubordination.
Serve as a witness to prevent supervisors from giving a false account of the conversation.
When a board member is present, the supervisor must inform them of the subject matter of the
interview, i.e., the type of misconduct for which discipline is being considered (theft, lateness,
drugs, etc.).
8.) The board member must be allowed to take the worker aside for a private pre-interview
conference before questioning begins.
9.) The board member must be allowed to speak during the interview. However, the board member
does not have the right to bargain over the purpose of the interview.
10.) The board can request that the supervisor clarify a question so that the worker can understand
what is being asked.
11.) After a question is asked, the board member can give advice on how to answer but cannot tell a
deputy not to answer questions, or to give false answers.
12.) When the questioning ends, the board member can provide additional information to the
supervisor.
May I consult with the DDA Association on other less formal matters?
Yes. The DDAA board is a resource to assist you in recognizing, discussing, and potentially resolving
any employment problems or concerns you have in an informal way with our Administration and
Human Resources. The DDAA Board can serve as intermediary between you and the Administration
and Human Resources. The DDA Board maintains a good working relationship with the Administration
and has had a good record of working out issues on an informal basis rather than getting ensnared in
formal grievance procedures.
If I am a supervisor am I still entitled to union representation in my labor relations?
Yes. A supervisor’s right to union representation was confirmed by the state Employer-Employee
Relations Act, which in former Government Code section 3522, granted state supervisory employees the
right to be represented by an organization of their own choosing. (Public Employees of Riverside
County, Inc. v. County of Riverside (1977) 75 Cal App 3d 882.)
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What are PORAC and LDF?
The Peace Officers Research Association of California (PORAC) is a professional federation of local,
state, and federal law enforcement associations from various law enforcement and public safety
jurisdictions. PORAC is dedicated to organizing, empowering, and representing the interests of public
safety officers. PORAC’s Legal Defense Fund (LDF) is a group prepaid legal services plan set up as an
ERISA trust that provides benefits for public safety personnel groups. The plan is administered by a
board of trustees and is financed through contributions paid by individual participants through the
member associations, earnings, and co-payments and deductibles. All members of the DDAA are
members of PORAC and pay into LDF on a quarterly basis — $ 2/mo. for PORAC dues and $
14.50/mo. for LDF coverage.
What LDF Benefit Plan are DDAA members enrolled in and what are the benefits?
Our policy is Policy # 600-88643 and we are entitled Plan I benefits, which include representation in: (1)
any civil action or criminal prosecution arising out of the scope of our employment; (2) all
administrative interviews related to acts or omissions either within or outside the scope of our
employment; (3) all pre-disciplinary hearings that result from the investigative process (i.e. a Skelly
hearing) if the action arose from an act or omission within and outside the scope of our employment and;
(4) all administrative appeals from imposed discipline dealing with matters within the scope of
employment only; and (5) state bar disciplinary proceedings (with DDAA Board approval). Under
certain circumstances, County Counsel will represent DDAs in civil actions and LDF will monitor the
county’s defense or provide counsel in addition to the County’s representation.
Attorney Richard Castle is an LDF panel attorney who specializes in labor relations, and is designated as
the DDAA primary LDF provider. He is available to speak to any Association member and can be
reached at (760) 802-4495 or rcastle@castlelaborlaw.com. Generally, members should contact a board
member before contacting Mr. Castle. However, if a member feels it is necessary, they may contact Mr.
Castle directly. Mr. Castle does not disclose the fact of the call or caller’s identity unless he is
authorized by the caller to do so.
How can I find out whether my situation is covered by LDF?
Members who believe they may need LDF legal services are encouraged by the DDA Association Board
to initially contact a DDAA Board member to assess the situation. You may call LDF directly at (888)
556-5631, which is available 24-hours a day. You will briefly speak with a case coordinator, who will
determine your eligibility for benefits. If your situation is covered you will be referred to your
association’s designated provider, Richard Castle. Most calls take no more than a few minutes. You will
receive a follow-up letter confirming coverage. Association members are obligated to notify LDF of
their claim for benefits before he or she will be entitled to any legal services. If a claim is denied, you
have the right to appeal pursuant to the procedures described in our plan. Current LDF Staff:
Edward Fishman, Legal Administrator
Rebecca Mann, Asst. Legal Administrator / Civil Monitoring
Cindi Forbes, Director of Operations
Supervisor Sylvia Riehle, Customer Service Coordinator
Carolyn Crockett, Membership and Eligibility Coordinator
Kristeena Brooks, Case Coordinator
Tracie Johnson, Case Coordinator
Omega Bayot, Accounts Payables Specialist
Maricris Gasmen, Case Coordinator
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Whenever a supervisor/manager interrogates an employee and (a) it appears that the employee may be charged
with a criminal offense as a result of his misconduct or (b) the worker refuses to answer questions on the ground
that the answers may be criminally self-incriminating, the questioning must be preceded by a “Lybarger
admonishment” derived from Lybarger v. City of Los Angeles (1985) 40 Cal. 3d 822. The employee must be told
the following: Among other things, that although the employee has the right to remain silent and not incriminate
themselves (1) silence could be deemed insubordination, leading to administrative discipline, and (2) any statement
made under the compulsion of the threat of such discipline (i.e., incriminating statements) could not be used against
them in any subsequent criminal proceeding. Thus, if the employee continues to assert his or her Fifth Amendment
right to remain silent in the face of the above admonition, there is a risk of disciplinary action. If one agrees to
answer questions (make a compelled statement) after the above admonition, management can use the answers for
administrative purposes but not criminal prosecution.
i
A Skelly hearing derives its name from Skelly v. State Personnel Board (15 Cal. 3d 194) in 1975. Dr. Skelly, a
public employee, was terminated from his employment with the State of California. The California Supreme Court
determined, among other things, that he was deprived of his due process right to pre-disciplinary discovery – the
“materials upon which the action is based.” A Skelly hearing allows an employee to respond to the allegations prior
to the imposition of any actual disciplinary action. The actual hearing allows an employee an opportunity to
respond to the proposed discipline; to refute factual allegation(s); and to mitigate severity of penalty. An employee
is entitled to have his or her union representative or attorney present.
ii
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