Entering the new year of 2018 will host a variety of challenges for all of us at the Sheriff’s Office. Working together is the only way we are going to be able to accomplish them. Day after day, law enforcement officers are highlighted in the headlines for encounters ending fatally or unfavorably. For example, an officer in Georgia was recently lambasted in the media for having shot and killed a Georgia Tech student instead of using other, less lethal means to manage the situation. Of course, such stories don’t tell you all the details of what occurred or provide context to the procedures involved. Unfortunately, in a time of intense scrutiny of law enforcement, this negative press has become commonplace.

There is a large issue that links these unflattering narratives: The need for budgeting and funding law enforcement training and recruitment programs.

The expectations placed on law enforcement by politicians, the media and the public are high — and almost impossible to meet due to understaffing and the lack of resources available for officers to address all those demands. Take a look at staffing at the Sheriff’s Department. A band-aid on a wound needing stitches. Patrol division is running low, detective units are running low, dispatch is at critical levels, Crime Scene Techs are now having to backfill their own. We continue to operate by placing that band aid on a wound needing stitches.

We utilize great equipment at the Sheriff’s Office. Our fleet is top of the line with all new vehicles and very little old equipment. This is a result of a few long years of never purchasing cars and trucks to fulfill that need. This a welcome sign. Our firearms are up to date, we are working on a new CAD and report writing system that should be more efficient that what we currently operate. Dispatch has been overhauled and provided newer and better equipment. The quarters are still cramped, but that will come with time as well. So there is some silver lining in regards to the equipment give to each of you in the specific job assignment you are in.

Professional development is needed to advance in any career. Training is necessary to keep up with changes in technology and the latest proven leadership techniques. Law enforcement officers, like all other professionals, need to remain up to date in an ever-evolving world. They need training on the tools, strategies and procedures that will help them perform better, avoid negative outcomes and be more adept at handling their greatly expanded role in today’s society.

The U.S. Department of Justice’s Community Relations Services’ Guide to Critical Issues in Policinglists use of force, management of mass demonstrations and encounters with persons with mental illness as the prevalent issues in the field — all issues that the press has criticized law enforcement for handling inefficiently. For example, an Arizona officerwas recently heavily criticized for tackling an autistic teenager, not recognizing the boy’s condition prior to the takedown. According to the DOJ’s recommendations, in order to prevent such mishaps, departments need crisis intervention teams (CITs) with officers trained extensively in crisis-intervention techniques working alongside mental health workers. While an ideal solution, this is simply not realistic, as not all law enforcement agencies have the budgets and manpower to create and maintain these teams. All law enforcement agencies are struggling to hire and retain cops to provide front line service.

So, with all the studies and statistics showing a need for training, not to mention law enforcement’s own advocacy for it, how are states and local governments responding? Here in California, the answer is more rules imposed on law enforcement, rather than budgeting for resources.

Earlier this year, the Los Angeles Police Commission re-introduced de-escalation into the LAPD’s lexicon in its “solution” to prevent the rise in shootings and suicide by cop.

The Commission’s decision came after analyzing use-of-force incidents throughout 2016, in which they found that in 50% of the 46 cases reviewed, tactical errors such as forgetting a Taser or lack of communication between partners were the cause of uses of force. As seen in the Arizona and Georgia cases, such unintentional mistakes can result in huge consequences for the officer.

Tactical errors can be rectified with ongoing training and assessing which strategies are most effective. Communication from the agency to its personnel is critical in effecting these strategies to carry out what the expectation is. This expectation has to be something attainable and not thought of and thrown out to fill in the blank.

What politicians, policymakers and the media need to understand is that dealing with offenders in the heat of the moment is often dangerous and unpredictable, and may not allow for calm, gradual de-escalation tactics. Unrealistic expectations place officers in a precarious situation if their decision-making is impacted by concerns about the potential consequences of applying force. Even if it’s absolutely necessary, they know they could be demonized in the press, punished by their departments or targeted by the public. Support from your agency is critical to getting the message across. The support shown by our brothers/sisters across the street at the Fresno Police Department from their leadership is a prime example.

Lawmakers also need to address recruitment to keep up with the influx of criminals being released under realignment and Props 47 and 57. Prison reform legislation in California has resulted in the release or resentencing of nearly 5,000 people from state prisons to cut costs. With most released prematurely due to decriminalized offenses, law enforcement is faced with the burden of dealing with abundant repeat offenders. The 1994 Crime Bill, which funded the recruitment of 100,000 new officers nationwide, demonstrated that recruiting more officers can contribute to a decrease in crime nationally. Not surprisingly, other studies also show that increased recruitment efforts and effective management of those recruits can reduce crime rates overall.

Effective policing begins with well-managed, well-funded departments. The Trump administration’s lifting of Obama-era restrictions in the federal 1033 Program was a recent, welcome show of support for law enforcement, but we need the same amount of political and financial support for the training and recruitment of the officers who will be using that equipment.

New research from the Heritage Foundation, in its report Policing in America: Lessons from the Past, Opportunities for the Future, champions the need for more political backup of law enforcement. For the study, the foundation worked alongside federal, state and local law enforcement agencies to identify policing issues and proactively find solutions, including combating allegations of racism within departments and false narratives crafted by the media, as well as the need for improving police–community relations and SMART policing.

Everyone has a part to play in advancing the police profession and reducing uses of force.

State and local government need to use this data to inform themselves on the issues that we’re facing. The bottom line is that all of this pressure is coming from people who are simultaneously telling us how to do our jobs and taking away our resources to do so effectively. Without proper training or proactive recruitment efforts, they are setting officers up to fail.

There is a lot going on in the world of law enforcement. Having the leadership to lead us through all of this is imperative. We need to lean on those leaders, connected with the media and to get our message across loud and clear with the public. The public wants to feel safe. Making sure they understand that is the same mindset law enforcement has is crucial to cohesiveness.

The 2018 PORAC Scholarship Application is available now to download at porac.org.  

PORAC provides scholarships for applicants who are currently attending or will be registering for college. Children or dependents of active PORAC members, Retired Associate members and in-the-line-of-duty dependents or spouses, as well as medically retired members,are eligible.

Application Deadline Ends March 30th 

I hope all of you had a safe and happy holiday season with friends and family. I look forward to continuing moving this organization forward, focused and in continuing on the right track.

Truly,

Eric

Wishing you all a holiday season filled with great food, the presence of those near and dear and plenty of memories to treasure always!

The membership of PORAC elected a new President on Saturday morning, November 18, 2017 during the Conference of Members hosted in San Diego. San Diego POA President, Brian Marvel was overwhelmingly elected as the new President of PORAC. He brings a wealth of experience and knowledge to Sacramento - that he developed during his role as the President of San Diego POA.

Brian's accomplishments as leader of SDPOA were clear- to protect and enhance pay and benefits for all members. During his tenure, Brian was able to negotiate an epic 25-30% pay raise for his membership. He was also able to get a voter passed, revised pension plan reversed.

Brian has a clear vision for PORAC. He wants enhanced communication for members, enhanced training for members, and a larger footprint in the State and Federal Capitol. Brian will continue the work PORAC has been doing on a national platform and take us to the next level.

The Fresno Deputy Sheriff's Association welcomes our new President of PORAC, Brain Marvel.

The Insurance and Benefits Trust of the Peace Officers Research Association of California (Trust) has been providing disability coverage to the PORAC membership for over 50 years; longer than any law enforcement group in the state. The PORAC Disability Plans currently provide short and long-term protection to over 21,000 PORAC members, representing over 180 participating associations. Last year, our Disability Plans paid members over $7 million dollars in both short and long-term benefits.

Maintaining the financial stability and reserves necessary to meet both current and future benefit obligations of your members continues to be of paramount importance to the Trust. Over the past four years, the Trust and its long term insured partner have seen a marked increase in the number of claims going past two (2) years in addition to an increase number of claims being paid beyond five (5) years. In order to make sure we can cover these claims and the evolving trend we have dedicated reserves of over $18 million dollars to guarantee payment of these claims. We hope you understand and agree that these reserves provide the financial security and confidence for any of those current or future disabled Members that their benefits will be there for them and their families when needed, whether it be today or for the long term 10, 20, or 30 years.

After much discussion, analysis and lengthy negotiations, the Trustees have approved effective January 1, 2018, the following monthly, per member premium increases:

Over this last year, the California Department of Insurance (CDI) completed an in-depth analysis and investigation of self-funded long-term disability plans being offered to safety personnel (peace officers and firefighters). CDI did this in response to the passage of AB 1072. Commissioned, the CDI investigated these self-funded long-term disability plans to determine the adequacy of their funding in meeting benefit obligations to the members and to review the administrative practices of the plans. The Trust is pleased to report that CDI sent a letter, approving this Trust's financials (its reserves) and the administration of the PORAC Disability Plans.

Over $80 million dollars in benefits have been paid to disabled members. This is both good news and bad news. Good news in that the Disability Plans were there to assist members and their families financially during those difficult and sometimes tragic times. Bad news in that so many members and their families have had to experience such challenges.

The PORAC Disability Plans continue to be two of the most heavily utilized benefit plans by the membership, especially when you consider that employers increasingly contest workers compensation claims and industrial disability retirements.

As referenced above, the Disability Plans currently have in excess of $18 million in reserves for existing claims. To drive home the importance of these reserves, there are currently over 40 members that have been determined to be permanently and totally disabled from all occupations and have been on claim receiving benefits for over five (5) years. They are expected to continue to receive disability benefits until age 65. That is the true test of a long-term disability plan.

The Trustees have also approved some plan changes to be implemented January 1, 2018. Some of those plan changes are:

Benefit Eligibility Waiting Period: During the first 60 days of Disability you are required to use any available personal leave pay you are eligible to receive from your employer. If after 15 days of Disability you are not eligible to receive any personal leave pay, your Maximum Monthly Benefit percentage during the first 60 days of Disability will be reduced: from 66 2/3% to 33/13% for members in the Premier Plan; from 70% to 35% for members in the Premier Plus Plan. Personal leave pay includes annual leave pay, sick pay, vacation pay, compensatory time pay, and donated amounts.

The Trustees are also developing a NEW Group Short Term Disability plan, the Silver Plan. This Plan is anticipated to meet the needs of some Associations looking for a less expensive plan while agreeing to a shorter benefit period. It is expected this Plan will be approved and available after January 1, 2018. Here are some of the highlights:

The Trust would like to thank all of the PORAC Associations and their members for their continued support of the PORAC Disability Plans. We appreciate all the confidence and trust you have shown through your participation and we will continue to strive to maintain your trust.

I hope you are all prepared for what is to come in the world of California Law Enforcement. I used to tell people we are the cutting edge to law enforcement agencies in the United States. Now, however, we are not only cutting edge in technology and tactics - but we serve up agendas for those ultra-left-wing legislators who want to put the handcuff on cops. As you will read below - what is to come for us all.

Attorney General Becerra Announces Final Regulations to Implement Racial and Identity Profiling Act (RIPA)

California Attorney General Xavier Becerra today announce the regulations drafted by the California Department of Justice (DOJ) for the collection of data pertaining to law enforcement stops under Assembly Bill 953 (AB 953), the Racial and Identity Profiling Act (RIPA) of 2015, are now final. Beginning July 1, 2018, law enforcement agencies, starting with the nine largest agencies, will begin collecting stop data and reporting the information to the DOJ.

"Public safety is a job for all of us - our peace officers, of course, but a cooperative citizenry as well. Trust is the glue that makes the relationship between law enforcement and the community work," said Attorney General Becerra. "This new RIPA data collection and reporting process is meant to strengthen, and in some cases repair, that trust. The regulations are a product of collaboration among community leaders, law enforcement professionals and researchers in the public safety field. I thank everyone who participated in the formulation of these regulations."

"The California Police Chiefs Association has routinely proven to be a collaborative partner with various stakeholders throughout California in our efforts to increase public safety and enhance community trust in law enforcement," said Chief Edward Medrano, Co-Chair of the RIPA Advisory Board and President of the California Police Chiefs Association. "The Racial and Identity Profiling Act and the recently approved regulations is another tool to ensure our officers continue to provide fair and impartial policing to the communities we serve."

"Racial and identify profiling has created trauma across California and the passage of AB 953 in 2015 sent a clarion call to the public safety system that necessary change was upon us," said Reverend Ben McBride, Co-Chair of the RIPA Advisory Board and Co-Director of People Improving Communities through Organizing (PICO) CA. "The RIPA Board worked alongside the Department of Justice and those closest to the pain around these issues, creating regulations for how we collect the data. We now continue the sacred work of ensuring California is a state where all, despite of difference, are treated with respect and fairness under the law."

"We need to move beyond the rhetoric and the entrenched positions on this issue," said Assembly member Shirley Weber, the author of AB 953. "It's time for us to address bias in policing from a policymaking perspective. With these regulations we will have the comprehensive hard data necessary to understand the scope of the problem and to make practical decisions about how to reduce over-policing persons of color, a practice that wastes resources, engenders mistrust and compromises public safety."

The RIPA regulations give law enforcement agencies and their officers clear instruction regarding what data to report about stops, and the logistics of how and when to report this stop data. DOJ completed the regulations after thoroughly considering the oral and written commentary from hundreds of stakeholders, including the law enforcement community, academics, and community advocates. DOJ also reviewed stop data collection programs in other jurisdictions and conducted a field test to better understand the practical implications of this data collection.

The regulations require, among other things, that officers collect and transmit to the DOJ the following information:

The first round of data collection, starting with the largest law enforcement agencies, will begin on July 1, 2018.

The regulations, including a complete list of the information required to be reported for each stop, can be found online at www.oag.ca.gov/ab953/regulations.

The DOJ published the original proposed stop data regulations in December 2016, as required by AB 953, to specify the data that local and certain state law enforcement agencies will be required to collect and report to the DOJ on each stop by a law enforcement officer. After receiving hundreds of comments from stakeholders during an initial 45-day public comment period, the DOJ revised the regulations.

In August 2017, Attorney General Becerra posted revised proposed regulations and opened a 15-day public comment period for stakeholders to participate in the process.

Stakeholders that provided input include the RIPA Board; state and local law enforcement agencies and associations; civil rights groups; individuals representing the LGBTQ, immigrant, disability and youth rights communities; community organizations; and members of academia. PORAC represented us as one of the stakeholders. The Attorney General's Office appreciates and thanks all stakeholders who participated in this process.

Take care of yourselves and one another.

-Eric

The retirement YOU work hard for needs to be protected. Please cast your ballot in support of the candidate who will work to back our interests!

John Robinson has been a Fresno County Deputy Sheriff for 23 years, and he owned his own business for 6 years. His business grew so large that he had to choose the business or the Sheriff’s Department because he could not keep up with the demand of working 6 days a week at his business and 4 days a week at the Sheriff’s Office, so he chose to stay with the Sheriff’s Office.

John is fourth generation of law enforcement. He has a strong passion to take care of the people he works with or others in the same field. He believes that we should be taken care of after we put 20-30 years into this job. The jobs related to safety retirement are very stressful and demanding, on us and our families. This is why John is running for this seat. He wants to do what he can to ensure that we are taken care of after we put our time keeping our communities safe. John will work to see that the decisions that are made are in the best interest of the retirees, those soon to retire, and future retirees.

 

A few months ago, I reported to you all about the controversial ruling in Association for Los Angeles Deputy Sheriffs v. Superior Court of County of Los Angeles (Los Angeles County Sheriff's Department). This is regarding the sending of information unprovoked to the District Attorney’s Office without any inquiry from their office.

Unsurprisingly, the Supreme Court granted the Sheriff's Department's petition for review.  The extent of the court of appeal ruling surprised many of us. It prohibited employers of peace officers from voluntarily sharing any Brady information with prosecutors or public defenders outside of a full Pitchess process -- even if it involved a potential witness in a pending criminal prosecution. The court of appeal decision was a split 2-1 decision.

Usually, after the losing party in the court of appeal petitions the Supreme Court for review, and answering and reply briefs are filed -- including any amicus curiae (friends of the court) letters supporting or opposing review -- the Court will rule within its statutory deadline, at times even extending its own deadline (as it is authorized to do).  Nonetheless, in this case, the Supreme Court granted review the day following the parties' last filing.

The Supreme Court has asked the parties to brief only the question of whether the law enforcement agency may disclose the names of officers who are potential witnesses in a pending criminal prosecution or whether such disclosure may only occur if a court order issues following a properly filed Pitchess motion. This suggests that the Supreme Court does not necessarily disagree with the court of appeal's conclusion that departments cannot simply create lengthy Brady lists and voluntarily release them outside of the Pitchess process without regard to any specific pending criminal prosecution.

We will be participating in the amicus curiae on this case that Messing, Adam, & Jasmine will be writing and sending to the California Supreme Court – responding to their question to the Court of Appeals.

Early morning rain didn’t put a damper on the 11th Annual FDSA Memorial Golf Tournament on Friday, October 20th. The wind and showers cleared out, just in time for an incredible day on the rolling hills at Eagle Springs Golf Course.

We were able to accommodate 200 golfers for a sold out event! The day was filled with great raffle prizes, food and fun! Sportsman’s Warehouse brought out guns this year, and a lot of players shelled out many dollars investing in the chance to win a weapon! We have so many dedicated community partners who help make this tournament a successful one. All proceeds go to support families of fallen deputies in Fresno County and law enforcement officers around the state. In addition, we also send several deputies to Sacramento and Washington D.C. every year to honor the service and sacrifice of those killed in the line of duty. We are so grateful for those organizations and people- who year after year commit to the cause, which is so important to us. With each tragedy, and officer lost- we promise to never forget their lives and their deaths. The funds we raise ensure we can honor them in many ways for years to come.

Written by Jason Jasmine (Messing, Adam, &Jasmine)

The Fourth District Court of Appeal made a significant interpretation of the Public Safety Officers Procedural Bill of Rights Act (“POBR”) (Gov. Code § 3300 et seq.) in the case of Santa Ana Police Officers Association v. City of Santa Ana, 2017 WL 2879796 (2017) that has the potential to impact many administrative investigations of peace officers. In the underlying case, the officers were surreptitiously recorded during an undercover raid of a marijuana dispensary and were investigated for allegedly inappropriate comments made while collecting and logging evidence.

After the initial interviews of two officers, the Department wanted to interview them a second time, and the POA claimed that the Department, pursuant to Government Code section 3303(g), was required to give the officers “a transcribed copy of any notes made by a stenographer or … any reports or complaints made by investigators or other persons except those which are deemed by the investigating agency to be confidential,” in addition to the recording of the first interview prior to the second interview. The Department refused to hand over the materials before the second interview, and the POA brought suit.

The trial court sustained the City’s demurrer without leave to amend. On appeal, the Court concluded that both the plain language of the statute and the decision in Pasadena Police Officers Association v. City of Pasadena, 51 Cal.3d 564, 572 (1990) required reversal of the trial court’s decision.

The Pasadena decision has historically stood for the proposition that an officer has no pre-interrogation discovery rights and that Government Code section 3303(g) requires a department to give an officer a recording of the first interview prior to the second interview. The Santa AnaCourt concluded that interpreting the Pasadena decision and the statute together, if an officer is entitled to the recording, the statute language renders the right to notes/reports/complaints coextensive with the right to the audio. This means that the officer is entitled to both the audio and the writings prior to any subsequent interview.

At first glance, the Santa Ana decision seems inconsistent with the Pasadena decision. However, the Pasadena decision really only says that an officer is not entitled to the notes/reports/complaints until after an interrogation. The Santa Ana court appears to reconcile Pasadena by interpreting it as meaning after the FIRST interrogation.

The Santa Ana decision has major implications for administrative interrogations of peace officers because usually a department does not conduct a second interview unless the officer is suspected of being dishonest in the first. Now, the officer (and his or her representative) may be able to see the investigator’s analysis and other witness statements before giving the second interview – which will significantly assist in a more meaningful defense for the officer. The decision will also impact investigations of firefighters under the Firefighter Bill of Rights Act, which has the same language as POBR in this regard.

We are joining forces with the Fresno Police Officer’s Association to show a movie called the Fallen Project. The goal is to show the public what happens when a law enforcement goes through a traumatic event on the job.

Tentative dates of the showing are going to be December 7th or December 14th. We will send out more details as the date approaches. Educating the community about our jobs is important and we are pleased to join forces with FPOA on this event.

Hope you are enjoying this season of cooler weather! As always, take care of yourselves and your partners.

-Eric

Fall is upon us! The FDSA Memorial Golf Tournament is just a few weeks away and we are busy making last minute preparations for another successful event! The annual event is sold out and we have a rather extensive waiting list for those still wanting to play. We are trying to accommodate as many golfers as possible, while also ensuring rounds aren't too long. The course is in great condition for the tournament on October, 20, 2017 at Eagle Springs Golf Course.

We are pleased to report that budget hearings lasted only one day this year. They were held on Monday, September, 18, 2017.

The daylong process was a huge contrast from prior years. The hearings went smoothly, in large part due to the cohesiveness and common goals of the current Board of Supervisors. The group is committed to working together with a priority to support public safety services in Fresno County.

Overall, the County of Fresno is operating a healthy and balanced budget. The over $3 billion dollar budget, funds 23 different departments and numerous programs within the county. This is a complex system. Some of our newer county leaders, like the new Auditor/Controller, Oscar Garcia, and a second year Chief Administrative Officer, Jean Rousseau- were able to see the process differently than years passed. This year the direction provided by the Board of Supervisors was clear and there were no snags or shenanigans.

Some highlights for the Fresno County Sheriff's Office include:

The County of Fresno still has a lot of outstanding debt to repay or pay coming up for this year. This is the final year of payment for the Quinten Hall Jail Lawsuit settlement.

$2.6 million dollars had to be funded for the hiring of an additional 42 correctional officers.

Pension Obligation Bond money - nine million in funding will be used to make a final payment on one of the pension obligation bonds.

The general fund reserve was increased by seven million dollars this year as well.

I have provided details about these different debts for several reasons. As long as the economy remains stable, these funds will be available in the next year. One example is the $2.6 million dollars allotted to hire CO's. Next year, this could be used to hire of more deputy sheriff's, dispatchers, and support staff to help alleviate the shortage of manpower we are experiencing at the Fresno County Sheriff's Office. Currently, we are still 60 plus deputy sheriff positions down from where we really need to be. This Board of Supervisors is committed to bridging that gap and getting us back to the level of operations where we can reduce the overtime and ‘overworked status' of many employees here.

Open enrollment for 2018 health insurance is from November 1st -30th, 2017. You will see not only a reduction in overall percentage from Blue Shield, but you will also see the county contribution increase as well. All of this equals more money in your pocket and less spent on health insurance (out of pocket bi-weekly by the member).

Other notable portfolio details include:

The 2018 rates attached reflect the three different plan options for all of you to see. These rates will include dental and life insurance as well.

Representatives from DiBudou and DeFendis will be at the FDSA on Thursday, October 26, 2017 from 8am-12pm to answer any questions you or your family members may have about our current health plan. Also they can answer any questions about changes that can be made, or how you or your family can benefit from the different plans.

You will see from the chart below- the rates continue to decline for members of the Insurance Trust. This is a direct reflection on the FDSA membership and how we are using, and not abusing our insurance plan. We have seen more people going to Urgent Care and utilizing the Teledoc service- than hospitals. These two things alone will reduce the billing amount – which provides lower cost renewal rates.

Shift signups will be Thursday, October 26, 2017, beginning at 8am at the Fresno Deputy Sheriff's Association Office. We will have vendors from DiBudou and DeFendis, California Casualty and from AFLAC as well.

The key assignment list for 2018 will be posted soon on the Star 2.0 page for everyone to view. This list has been finalized by FDSA and the FSO – and we are on track to get people signed up, followed by vacation signups after that.

Those of you signing up for patrol this year will receive a specific time slot. As we have done in prior years- we will ensure the seniority list is accurate before this takes place. Once that occurs, you will be given a time to show up. Deputies who have worked at FSO less than three years will receive the same time block to show up and sign up as a group. Seniority will take place with your group as well.

Vacation signups will be conducted shortly after patrol signups to ensure proper planning for you and your family.

The goal of the agency in 2018 is to continue hiring deputy sheriffs to fill our vacancies and alleviate the staffing shortage. With hiring comes training and deployment. The process is not fast and isn't a turnkey either. This not only holds true for deputies, but all the rest of the job classifications we represent. I value our personnel in this department and the job you all do regardless of your assignment.

Take care of one another.

— Eric

School is back in session in the Central Valley and this is always a busy season for us at the FDSA. The annual Peace Officer Memorial Golf Tournament is around the corner and we are proud to announce the event is SOLD OUT! 200 golfers will be teeing off around 8am at Eagle Springs Golf Course on October 20th! If you would like to volunteer to help or just hang out, feel free to join us that day for the biggest fundraiser of the year. As always- the proceeds assist families of fallen deputies and also provide opportunities for coworkers to honor those who paid the ultimate sacrifice in Sacramento and Washington DC.

Lexipol Policy

As you are aware, each member of the Fresno County Sheriff's Office is required to log on, review, and then acknowledge you have read the current Lexipol Policy.

This policy has been discussed and thoroughly reviewed by the FDSA and our legal counsel. A majority of the existing policy transferred over from FSO Policy directly to Lexipol. The purpose of the Lexipol Policy is a formalized way to provide up-to-date guidelines, procedures, and protocols for law enforcement agencies. The policy includes case law updates to provide the agency with the latest legal information- which is important for everyone in a law enforcement career. 

During this two year process, FSO management and FDSA leaders have been meeting to review the policy. It has been a priority to ensure the language provided in the documents is transferred accurately, and that any additions are discussed and agreed to prior to being included in the policy. After careful review and several meetings with the Sheriff's administration, some portions of the policy were put on hold until we can get an agreement between FSO Management and FDSA. Most of the changes we made in the policy were grammatical, however- the language provided in a few instances, could have resulted in a different intent. Some interpretations could have been drawn, so we clarified these issues.

There are some policies you have not seen yet; such as grooming and personal communication devices. The reason being – in order to publish something new FDSA and FSO shall meet and agree on this change or addition. Ironically, you saw policy 1030, dealing with social media, published July 7th. This policy, one we have never had at FSO, by-passed the process of meeting, discussing and ultimately agreeing to publish. Many of you, from the time that rolled out contacted me with concerns. All of those concerns have been addressed with FSO Management.

On August 22, 2017 FSO Management depublished the policy so we would be able to further discuss and come up with resolution that both sides can live with. Once we have that agreement, you will be notified as the policy will be republished to the entire organization. I want to thank those of you reaching out to me with many of your comments and concerns. That helps tremendously in a somewhat sensitive policy such as that one.

On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees.  Fresno Deputy Sheriff’s Association is one of these groups. This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information. Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice.  The employer must also provide the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties. Some of these items are currently being followed by FSO and the County of Fresno and some need to make their way in-line. The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union.  The statute also adopts the privacy protections set forth in County of Los Angeles.

The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."  Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.  

This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.   

Below are lists of some questions asked by PORAC prior to the bill being signed so there was as much clarity as possible when it came to what the rollout of the governor’s bill would be.

When do I need to begin complying with AB 119?  Now. Most bills take effect on January 1st. However, AB 119 is part of the “Budget Bill” (Cal. Const. , Art IV, §12) which means it takes effect immediately.

What does my agency need to do? AB 119 places an affirmative burden on public agencies to immediately begin doing three things (Gov. Code sections 3555-3559):

If you haven’t already, then your agency should put into place procedures to comply with these three requirements.

AB 119 also has a requirement that, upon request, the parties bargain over the structure, time, and manner of access of the union to a new employee orientation. But again, this is only upon request.

How does the notice requirement work if my agency’s orientations are individualized and not in a group setting? 

The bill leaves such details for negotiation between the parties. Getting clarification on this issue might be one reason a public agency would want to request to bargain over these issues affirmatively, as opposed to waiting for a request from the union. But in the meantime, my advice is to comply by providing the union ten day’s advance notice of all orientations, even individualized employee orientations. This assumes that the individualized employee orientation is the only one conducted by the agency.  If the agency conducts a group orientation and also an individualized one, I think giving notice of the group orientation is sufficient.

What if my agency’s orientation is exclusively online, and conducted at the leisure of the employee? 

The bill expressly provides that online employee orientations are covered, but beyond that, the bill leaves details of compliance subject to negotiation between the parties.  Again, getting clarification on this might be one reason a public agency would want to request to bargain over these issues affirmatively. But until then, my advice is they comply by providing the ten day’s advance notice if you know the date of the online orientation.  What if the online orientation is done by the employee at his or her leisure?  For example, the employee is given a link and told to complete the orientation within a certain amount of time.  My advice is to try to comply as much as possible. In this example, you can notify the union that a new employee has been hired, that the employee has been told to complete online orientation, and remind the union that the employer is willing to meet and confer over further details upon request.

With respect to providing home addresses, email addresses, and telephone numbers, what about an employee’s right to privacy? 

The bill makes mention that the provision of such information shall be consistent with the privacy requirements in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905. In that case, the California Supreme Court held that under the MMBA, a union has a presumptive right to employee contact information such as home addresses and telephone numbers. (Notably, personal email addresses and personal cell phone numbers were not an issue in the Los Angeles case.) The Court also held that with respect to the right of privacy, the balancing of interests favors disclosure to the union. But the Court did allow that the balancing of interests may “in some cases, tip in favor of privacy when an individual employee objects and demands that home contact information be withheld.” So what’s the bottom line? I think that there can be an opt-out process put in place to prevent some of this information from being provided to the union if the employee objects. The op-out process, or at least some aspects of it, will likely be subject to negotiations with the union. It’s a delicate balance and an area where legal counsel should probably be consulted.

Bills Currently being followed closely by PORAC

I will continue to be a voice for all of you at the State level through our PORAC representation, which is the most, sought after and respected voice for law enforcement at the State Capital of California. Thank you to those of you who reach out to me on a consistent basis regarding these types of bills and offer your input. That is all taken back to our lobbyists and PORAC.

Shift Signups:Tentative date for shift signups has been set for Wednesday, October 18, 2017 at around 8am. There will be more to come on this as we get closer. Those of you signing up, I wanted to give you the tentative date in which FDSA and FSO Management have discussed.

Open Enrollment:

Insurance open enrollment is scheduled for November 1 through November 30. We will be sending out a letter shortly to all the members explaining the rates and benefit changes for the upcoming 2018 plan year. The good news – your rates will be going down! This will be the third year in a row the FDSA health insurance rates are going down, meaning less cost to our employees and more money in your paychecks. I will have a thorough article next month explaining all of the FDSA insurance rates and benefits.

Take care of each other in whatever assignment you are in.

-Eric

Summer is winding down and in a few short weeks- school will be back in session for many districts throughout the Central Valley. I hope you have had the chance to make some fun memories with family and friends.

The Fresno County District Attorney has filed criminal charges against Deputy Jared Mullis in the accidental shooting death of Sergeant Rod Lucas on October 31, 2016. The criminal complaint charges Mullis with involuntary manslaughter, along with a gun enhancement charge.

Alongside his attorney, Roger Wilson, Deputy Mullis made his first court appearance on Thursday, August 3rd in Fresno County Superior Court. He entered a plea of not guilty.

The charges have brought about strong feelings and opinions by many deputies and FDSA members. Nine months after the tragedy- Sgt. Lucas’ death continues to affect many who knew and worked with him. He was a highly respected law enforcement officer- and his death has left a void in the Special Investigations Division (SID), and beyond. As a representative of our association, I have been keeping in contact with Deputy Mullis and his legal team. He remains an FDSA member and has been provided legal representation through the Legal Defense Fund. Deputy Mullis remains devastated by what has happened. He opens his eyes each day to a very heavy burden. The events of that day changed many lives and created a lot of heartache for everyone involved.

As the case against Deputy Mullis moves through the legal system, I ask that you be mindful and considerate of everyone involved. This is a difficult and painful journey for both the Lucas and Mullis families.

For several years, the Brady list has been a hot topic among California law enforcement officers. Recently, there have been some new developments that I feel are important to share. The following is an article published from our legal team, Messing, Adam & Jasmine.

Law enforcement agencies cannot disclose the names or other identifying information of officers who are on Brady lists to any outside body, including prosecutorial agencies, absent compliance with the Pitchess process. This notable victory for peace officer privacy rights came this week in Ass'n for Los Angeles Deputy Sheriffs v. Superior Court of County of Los Angeles. 


Factual Background

Last year, the Los Angeles Sheriff's Department ("LASD") Command Staff compiled a Brady list of nearly 300 deputies whose personnel files contained sustained allegations of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The Department intended to disclose the list to prosecutors who handle LASD investigations. Prosecutors could have then either filed their own Pitchess motions to discover the underlying misconduct or advised the defense of the disclosure. LASD sued to prevent the Department's voluntary disclosure of this Brady list to anyone outside of the LASD, absent complete compliance with the Pitchess statutes (Cal. Evidence Code, sections 1043 and 1045 and California Penal Code sections 832.7 and 832.8). Following a lengthy hearing, the trial court granted a preliminary injunction prohibiting disclosure of the list. But the trial court permitted LASD to voluntarily disclose information on officer misconduct if it believed that disclosure was necessary to comply with Brady v. Maryland(1963) 373 U.S. 83 (1963). Brady requires that the prosecution must turn over all exculpatory evidence to the defense. The court reasoned that the constitutional mandates of Brady supersede statutory obligations under Pitchess. 


Court of Appeal Holding 

A 2-1 majority of the Second District Court of Appeal agreed that injunctive relief was warranted to prevent the general disclosure of Brady list information on officers absent compliance with Pitchess. However, the court of appeal went further and rejected the trial court's view that law enforcement agencies may violate Pitchess if they believe that voluntarily disclosure of officer misconduct is necessary to comply with Brady. Thus, it ordered the trial court to strike from its injunction any language allowing disclosure of Brady list information to any individual outside of the LASD, even if the deputy is a witness in a pending criminal trial, "absent a properly filed, heard, and granted Pitchess motion, accompanied by a corresponding court order." 


What This Ruling Means for California Peace Officers 

This ruling reaffirms peace officer privacy rights under Penal Code sections 832.7 and 832.8 and bars public safety employers from proactively disclosing Brady information to prosecutors and defense counsel absent compliance with Pitchess. The employer may still maintain an internal Brady list -- it just cannot disclose it absent a court order. The court also found that transfer or other change in duties based upon placement on a BradyList does not implicate POBR absent evidence the action was for "punitive purposes." 

If you have any questions about this alert, please contact Tylor Dominguez at 415.266.1809

The Fourth District Court of Appeal made a significant interpretation of the Public Safety Officers Procedural Bill of Rights Act ("POBR") (Gov. Code § 3300 et seq.) in the case of Santa Ana Police Officers Association v. City of Santa Ana, 2017 WL 2879796 (2017) that has the potential to impact many administrative investigations of peace officers. In the underlying case, the officers were surreptitiously recorded during an undercover raid of a marijuana dispensary and were investigated for allegedly inappropriate comments made while collecting and logging evidence. After the initial interviews of two officers, the Department wanted to interview them a second time, and the POA claimed that the Department, pursuant to Government Code section 3303(g), was required to give the officers "a transcribed copy of any notes made by a stenographer or ... any reports or complaints made by investigators or other persons except those which are deemed by the investigating agency to be confidential," in addition to the recording of the first interview prior to the second interview. The Department refused to hand over the materials before the second interview, and the POA brought suit. The trial court sustained the City's demurrer without leave to amend. On appeal, the Court concluded that both the plain language of the statute and the decision in Pasadena Police Officers Association v. City of Pasadena, 51 Cal.3d 564, 572 (1990)required reversal of the trial court's decision. The Pasadena decision has historically stood for the proposition that an officer has no pre-interrogation discovery rights and that Government Code section 3303(g) requires a department to give an officer a recording of the first interview prior to the second interview. The Santa Ana Court concluded that interpreting the Pasadena decision and the statute together, if an officer is entitled to the recording, the statute language renders the right to notes/reports/complaints coextensive with the right to the audio. This means that the officer is entitled to both the audio and the writings prior to any subsequent interview. At first glance, the Santa Ana decision seems inconsistent with the Pasadenadecision. However, the Pasadenadecision really only says that an officer is not entitled to the notes/reports/complaints until after an interrogation. The Santa Ana court appears to reconcile Pasadena by interpreting it as meaning after the FIRST interrogation. The Santa Ana decision has major implications for administrative interrogations of peace officers because usually a department does not conduct a second interview unless the officer is suspected of being dishonest in the first. Now, the officer (and his or her representative) may be able to see the investigator's analysis and other witness statements before giving the second interview - which will significantly assist in a more meaningful defense for the officer. The decision will also impact investigations of firefighters under the Firefighter Bill of Rights Act, which has the same language as POBR in this regard.

If you have any questions about this alert, please contact Gary Messing (This email address is being protected from spambots. You need JavaScript enabled to view it.) or Lina Balciunas Cockrell (This email address is being protected from spambots. You need JavaScript enabled to view it.) at 916.446.5297.

This is an update from the Coalition we (FDSA) through the lead of PORAC are involved with. I have been a representative from the Central Cal chapter dealing with this issue for our region. There will be updates on this CABT since the issue is rising again in Washington DC.

The House Appropriations Committee met recently to mark up the Transportation, Housing and Urban Development (THUD) appropriations bill where it was expected that bigger-truck proponents would offer an amendment to mandate longer double-trailer trucks, or Double 33s, nationwide. Similar efforts to allow heavier trucks lost momentum in the days leading up to the vote. Bigger-truck proponents were vigorously working the Hill and the longer-truck amendment in particular was building momentum. The CEOs of FedEx and UPS, joined by Amazon lobbyists, were meeting with Members up to the final days and hours to push the Double 33s amendment to committee approval. As of 30 minutes before the markup, we fully expected the longer double-trailer truck amendment to be filed. Despite the intense lobbying from these powerful companies, outreach from community leaders like you outweighed the push for Double 33s, and last night the bigger-truck amendments were not offered. Our coalition delivered an effective message about the negative impacts bigger trucks would have on highway safety and the nation’s infrastructure--and we prevailed. Thank you for all you have done to get us to this win--it was your calls, letters and emails that have made the difference in this campaign! We were victorious in this stage of a hard-fought campaign, but we are still far from the end. The THUD appropriations bill needs to go to the House floor. The same process also starts in the Senate as early as next week--you will recall in 2015 that the Senate Appropriations Committee decided by one vote to approve these longer doubles. While the vote is a setback for the other side, proponents show no signs of giving up--these truck size and weight increases are too important to their bottom line. They will not stop, but neither will we. I must emphasize again how vital your work is to this process. Without your expertise and commitment to keeping our roads safe and preserving our infrastructure, we would not be where we are right now. On behalf of motorists, taxpayers, and CABT staff, thank you. Please let me know if I can answer any questions, and I will continue to keep you updated. Thank you again for all you do for our communities.

Truly,

Eric

Summer is officially here and we are experiencing the results of an incredibly wet winter. Overflowing rivers and waterways are extremely dangerous now. Although the public has been banned from recreation on the lower Kings River- the water is still drawing a few who are risking their lives- either as thrill seekers, or just unaware or careless citizens. These people grossly underestimate the power and deadly possibilities of the current until they find themselves in a dire situation. When you respond to these calls, please be cautious and extremely careful. Evaluate your options before jumping into the river without life saving equipment or resources. The danger is not limited to the public- it's a force that can overcome all of us.

One welcome benefit this summer that we haven't seen in a while- is a much anticipated pay hike. As of July 3, 2017, the first of three pay raises took effect. If you track law enforcement raises throughout the state this year, you will see the contract we negotiated provides substantial increases that most agencies aren't seeing.

However, please take note that every six months, between the county giving more towards your health care, and the next two pay raises, you will be seeing increases to your paycheck. We should have the new health insurance rates within the next 6-8 weeks for the 2018 enrollment year. There will be more to come on this topic later.

This is quickly becoming a deadly danger that we need to be aware of no matter what assignment we work. Synthetically manufactured fentanyl is difficult to detect and has the same appearance as many other illicit drugs. Within the past few weeks the Drug Enforcement Administration (DEA) has issued a nationwide alert to first responders about the accidental overdose risk of illegal fentanyl.

A year ago some of our deputies encountered this drug. Fortunately- they were not injured during the contact. Ingesting merely a few granules can be deadly. However, a reversal drug called Narcan – works to quickly counteract the drug’s effects. Narcan is widely used in a nasal spray form. It can be purchased at most pharmacies including CVS and Walgreens.

We have asked the sheriff's administration to consider providing this lifesaving tool to deputies.

Attached below is a letter formalizing our position to FSO management.

 

**To date I have received a short response advising me our request is being worked on. I will update you all with more information to follow.

 

The FDSA is partnering with Sheriff Mims to make a positive difference in our community by investing in elementary aged students in Fresno County. We are joining forces with Big Brothers/Big Sisters of Central California, who are asking deputy sheriffs to consider donating their time to a child who could use a friend and positive role model. The commitment is nominal and takes about an hour a week to make a lasting impact on a young boy or girl. This is a completely voluntary commitment.

During detective/patrol/CSU briefings over the next few weeks, representatives from Big Brothers and Big Sisters will be giving specifics about the program titled, Bigs in Blue. The goal is to partner law enforcement officers with local youth to build strong and trusting relationships. Ideally, we would like to get at least 10 deputy sheriff volunteers, but truly there is no limit.

Volunteers will be mentoring a child attending Madison Elementary School, which is located at Madison and Kearney Boulevard in Fresno County. The program will start at the beginning of the school year and volunteers will be asked to basically have lunch with the student who they mentor once a week.

The campaign is also being presented to FPOA and ClovisPOA with the same goal in mind.

Undersheriff Steve Wilkins said deputies, regardless of their assignment, will be able to participate in the program during on-duty hours, schedule permitting. No matter what shift you work- all deputies are welcome and encouraged to participate in the program. If you do not work a day shift, flex shifts will be accepted to accommodate the deputy’s time.

This is completely voluntary on the side of deputies, but a great opportunity to connect with the community we serve.

As reported in the FDSA newsletter dated September 23, 2014, the FDSA filed a grievance on behalf of two deputy sheriffs who were being “forced-out” of their specialty/detective assignment without cause. Last year, this delayed shift signups about 30 days. To refresh your memory- I have included a portion of the message to remind you about the issue.

Excerpt from September 2014 President Message:

On April 17-18, 2015- the FDSA, along with our legal team, led by Gary Messing and assisted by Lina Balciunas-Cockell, began the arbitration hearing. The FSO Executive Staff was represented by County Counsel, Kathy Basham.

During the two day hearing, several witnesses were called to testify from both sides. The arbitrator, who was mutually agreed upon by both the FDSA and County of Fresno- heard the entire case from start to finish. Once the arbitration concluded, both parties had roughly 30 days to submit written closing arguments in to him. The arbitrator would then render a decision in the following 30 days.

The Arbitrator ruled in favor of the FDSA.

I am going to attach a summary of the last page where his ruling is handed down.

“In summary, based on the evidence the arbitrator’s finding is that the Department violated Government Code Section 3505 and Article 53 of the MOU, when it unilaterally changed the past practice of involuntary transferring the deputies from their special assignments based on criteria other than that of disciplinary issues, documented performance issues, layoff or disability retirement.”

 

 

2. The Department shall allow Deputies Isaac and Alstrom the opportunity to return to their special assignments in the Vice Intel Unit and the Ag Task Force, if they choose to do so, That election shall be made in writing within thirty (30) days from the date of this award.

One of the main points described by the Arbitrator includes the department violating the FDSA Memorandum of Understanding, or MOU. His decision sustained the Article in the MOU- determining it was violated by the department. It also gave the deputies the ability to go back to their original assignment.

On July 20, 2015 the Sheriff filed a writ in Fresno County Superior Court appealing the ruling by the mutually agreed upon Arbitrator.

On June 7, 2017 the arbitration ruling was heard in Fresno County Superior Court by the Honorable Samuel Dalesandro. Both sides presented brief discussions supporting their points and authorities.

To date, we have not received word of the decision. I have not discussed this case with Sheriff Mims in about two years. She elected to challenge the arbitrators ruling in this case. Once a decision is handed down- I will provide it to you.

As always, please remember we rely on each other. Take care of one another- in the field and in the office. I can’t emphasize that enough.

In addition- I would like to extend my gratitude to those supervisors who have taken the extra time to allow flexibility in the schedules of many deputies during the summer months. Many of us are working well over 40 hours a week, and that extra personal time is much appreciated. And to every member, we are safer when we all do our part to fill staffing positions during months when vacations are in abundance.

Truly-

Eric

I want to thank you for allowing me to represent you for a fifth term as President of the Fresno Deputy Sheriff's Association.

During the past nine years, I have worked incredibly hard to provide every one of you with better wages and working conditions. I am honored to serve you in this leadership role.

I took office during a challenging and stressful era, as our entire country faced the toughest economic times in recent history. During the widespread recession, Fresno County sent out 88 layoff notices to deputies. Tireless negotiations and cooperation with the Board of Supervisors and Sheriff resulted in not a single deputy losing their job. In 2011, painful and unwanted recession related pay cuts were made to balance the county's deep budget deficit. However, our next contract not only resumed earning amounts to pre-recession rates- it exceeded them by 5.5 percent. Most recently, our latest contract provides a notable 16 percent pay raise over three years.

The new contract also has Fresno County contributing more toward insurance costs for FDSA members. In addition, we currently have lower insurance rates that we have experienced in years. As Chairman of the FDSA Insurance Benefits and Trust Board, I have worked hard to educate members about usage and ways to get our rates lower. Once our large claims and usage decreased, I was able to show these successful strides to our insurance providers to receive a significant drop in rates.

I have also spent countless hours meeting with various community leaders and elected officials to elevate the organization to become one of the premiere associations in Central California. The FDSA is now widely recognized as a law enforcement association that is engaged and leading the way in local police related issues affecting Fresno County and beyond.

A few highlights during my tenure include:

I am grateful for the confidence you have had in me throughout the years.

Although we may not cross paths often, please remember I am always available, to discuss any issue or concern you may have, at any time. This is my commitment to each member of this organization.

Thank you so much for your continued support. I'm so grateful and humbled to serve in this capacity.

Eric

Despite objections from countless law enforcement organizations, Voltaire Williams who is serving a life sentence for his critical role in the 1985 assassination of LAPD Detective Thomas Williams (no relation) was granted parole on May 2nd, by a three-person panel from the Board of Parole Hearings.

Voltaire Williams, who has spent the last 32 years in prison after being convicted of conspiracy to murder Detective Williams will now be released on parole. The decision, made after Governor Jerry Brown requested the Parole Board to reconsider an October, 2016 grant of parole for Williams, reinforces the fact that the Parole Board is determined to release life sentence inmates regardless of their dangerousness to society.

Inmate Williams was a key participant in what has been described as one of the worst murder plots in Los Angeles history; the killing of LAPD Detective Thomas Williams to prevent him from testifying in an upcoming criminal case. Inmate Williams was supposed to shoot Detective Williams himself. When the person who had hired him decided to commit the murder on his own, Williams chose not to inform authorities. Detective Williams was picking up his six-year-old son Ryan from church school when the shooter opened fired with a Mac-10 assault rifle. Williams barely had time to tell his son to duck before he was struck by the hail of bullets that also penetrated classroom walls.

Governor Brown asked the Parole Board to reconsider the earlier parole grant, citing Williams's minimization of his role in the crime and his lack of appreciation of the magnitude of the crime and its effect upon the community. Deputy District Attorney Lawrence Morrison highlighted these concerns before the Parole Board, as well as the inmate's lengthy history of lying to prior parole panels on key points of his actions during the conspiracy. Morrison further pointed out to the Parole Board, Williams' failure to acknowledge his active involvement in two separate conspiracies to murder, and the board's reliance on incomplete psychology reports predicting a low risk of future violence.

None of this mattered to the Parole Board, which operates behind prison walls outside the eye of the public. It is clear that in their minds, when an inmate has served a certain portion of their sentence they should be released, and any future harm they cause can be dealt with via a new prosecution. A rubber stamp could hardly do worse.

=======================================================

I found an interesting article that was published by the San Francisco Chronicle on May 31, 2017. You will find the similarities of some language within the article. Obviously some of the major difference is the San Francisco DSA is more "fixed post," with the courts and jail operations. San Francisco Police Department handles all the law enforcement within the county. San Francisco is one of the unique city/counties in California.

The point of the article is to show the staffing shortages that have been and are currently occurring throughout the State of California. Salary and benefit packages are a huge driving force these days into where new recruits will land a job.

The Sheriff makes the decision to who will be working and when. The DSA will just be able to create a happy medium with an order to ensure safe working conditions. The Sheriff is making a decision until she can get the problem under control. She is calling for ALL HANDS ON DECK!!

-SF Chronicle

The San Francisco Sheriff's Department jail population has been on the decline in recent years, but there still aren't enough deputies to work in the county's jails without authorizing overtime.

In fact, staff shortages have forced Sheriff Vicki Hennessy to order her 840 sworn deputies to work mandatory overtime until September, according to a May 19 memo titled "Declaration of Emergency" that was obtained by the San Francisco Examiner.

The memo, which Hennessy acknowledged last week in a phone interview, states that every deputy must work 12 hours of overtime and managers must work eight per pay period so that minimal staffing levels can be met because of the "extreme staffing shortage."

Fully staffed, the department would have 915 deputies.

Hennessy said that in the past, volunteers have come forward to fill the gap when there are expected staffing shortages, such as during the holidays or over the summer.

"I am ordering them to work, if not [we'll] learn what will happen if they don't," she said, adding that this is the first time the department has had to mandate overtime since she was elected sheriff in 2015.

But she has had to cancel some deputies' days off during winter holidays.

The order will stand until Sept. 8, but Hennessy expects by next summer to hire deputies for the dozens of unfilled sworn full-time positions.

"Next summer we're going to be in a much better place," she said. "For now, we're struggling."

The order is due to a lack of new hires in recent years, and will cost The City a pretty penny. In fact, the department's budget asks for overtime increased by 22 percent compared to last year, according to the Budget Analyst's Office.

In the current fiscal year 2016-17, the department budgeted for $12 million, but they overspent and overtime reached a total of $23 million, which is 22 percent higher than the previous fiscal year's overtime cost of $19 million.

Those extra funds — $11 million — were repurposed from unspent salaries and other funds because of vacant positions.

The San Francisco Deputy Sheriffs' Association did not return a call for comment.

The issue of overtime spending has been a problem at least the past eight years, mostly because of a freeze in new academy classes following the recession. Since then, the empty positions have been filled with an escalating overtime budget.

"Since fiscal year 2013-14, sheriff overtime expenditures have increased by approximately $13.6 million, or 130 percent," according to the budget analyst report.

Following the celebration of National Police Week, which honors the men and women who serve and protect our communities, Congressman Jerry McNerney (CA-09) announced that he is leading efforts to urge the Postmaster General to establish a semi-postal stamp that would honor fallen law enforcement officers and direct the stamp's proceeds toward a program benefiting their families.

"Every day, law enforcement officers across the country put their lives on the line in service to the American people," said Congressman McNerney. "While they don't ask for recognition or praise, we owe them a great deal for the safety and security they provide. Any officer that gives his or her life in the line of duty is a tragedy for their families and for the community. This stamp would not only pay tribute to these brave men and women, but the proceeds from this purchase would go toward helping their families in these tragic situations."

In a letter to the Postmaster General – which was endorsed by the Federal Law Enforcement Officers Association (FLEOA), the Peace Officers Research Association of California and the National Association of Police Organizations (NAPO) – Congressman McNerney points to the success and benefits of similar stamps that were specifically designed to contribute to causes such as breast cancer research and saving vanishing species, which have collectively raised more than $87 million.

"In addition to establishing this much-deserved acknowledgment for our fallen law enforcement officers, issuing this stamp would help the families they leave behind while also encouraging the use of the United States Postal Service," said Congressman McNerney.

Additional signatories on the letter include Representatives Debbie Dingell (MI-12), Grace Napolitano (CA-32), Mike Thompson (CA-05), Gregorio Kilili Camacho Sablan (D-N. Marianas), Richard Nolan (MN-08), John B. Larson (CT-01), Salud Carbajal (CA-24), and Betty McCollum (MN-04).

Stay safe and continue to protect one another out there during these hot summer months.

– Eric

On Tuesday, April 11, 2017 we honored Deputy Sheriff Allen Passmore for his 50 years of life at a wonderful service given by Pastor Fred Leonard from Mountain View Community Church. Allen was memorialized by friends Quinton Hawkins, Damon Bagley and Justin Gainer.

Many of you may not have known Allen at the Sheriff's Office. Below I have attached the eulogy read at this funeral by Sheriff Margaret Mims. Allen's wife, Vicki, wanted to share this with those of you at the Fresno County Sheriff's Office.

 

I wanted to update you all on an incident that occurred with San Bernardino deputies in 2015, as I had a few inquiries recently if I knew any resolution on this case. Just so happens, this case was taken to trial recently and a sheriff's deputy in San Bernardino was convicted of assault for his role in the beating of a suspect following a chase on horseback in 2015.

Deputy Charles Foster, 35, faces up to three years in prison at an April 28 sentencing after a jury found him guilty of assault by a police officer, San Bernardino County District Attorney's Office spokesman Christopher Lee said. Lee added that the jury agreed on Foster's guilt in the incident, but was deadlocked, 8-4, on the same charges against Michael Phelps, 31, and Nicholas Downey, 34, two other deputies involved. Prosecutors have not decided whether to retry Phelps and Downey.

Many of you may or may not remember, this was a case involving a suspect, Francis Pusok, who took deputies on over a three hour chase, on foot, vehicle, and ended with him on a horse in the mountains of San Bernardino.

The incident, on April 9, 2015, began with deputies arriving at a home to serve a search warrant in an identity theft case. Francis Pusok, who was present at the scene but not a suspect, although he had been arrested several times previously, fled at the sight of deputies. A three-hour chase across the county's desert, which involved Pusok escaping on a stolen motorcycle and later a stolen horse, ended with a confrontation with officers. Video from a live television report from a hovering helicopter showed Pusok being beaten by the officers.

Deputies were inserted by helicopter to make the final arrest and the significant use of force was captured by a news helicopter flying above the incident at about the 8000' mark – filming the entire incident that left a black eye on law enforcement.

Pusok had made threats to kill the next deputy he encountered. However, when he was finally arrested he was in the prone position and obviously surrendering to the three deputies on scene. Rather, than making the arrest – the three deputies proceeded to punch and kick Pusok repeatedly before more deputies (ten more) arrived on scene to make the final arrest in handcuffs.

Pusok received a $650,000 settlement from the county after the incident. His trial, on charges including evading a police officer, resisting arrest, stealing an animal, cruelty to an animal and being under the influence of drugs, and vehicle theft, is scheduled to start in May.

The First District Court of Appeal in San Francisco issued a highly controversial decision in Marin Association of Public Employees v. Marin County Employees' Retirement Association. The Court ruled that an employer may reduce pension benefits, before retirement, so long as the pension benefit remains "reasonable." The Court offers no guidelines for what is a reasonable change and what is an unreasonable one.

The decision is an undisguised, frontal assault on the so-called "California Rule" which has long-protected vested pension rights. Anti-pension advocates are prematurely seizing on this ruling as a "game changer."

Our law firm, Messing, Adam and Jasmine, who also represents Marin County's firefighters and managers in this specific case.

The facts are simple. Since the landmark Ventura case in 1997, the Marin County Employees' Retirement Association (MCERA) has included standby pay; administrative response pay, call-back pay and "cash in lieu" pay as "compensation earnable" under Government Code section 31461. Both employees and the County employer paid contributions based upon the inclusion of these premiums.

After the Legislature passed the California Public Employees' Pension Reform Act of 2013 (PEPRA), however, MCERA determined that it would no longer include those premiums as compensation earnable for both existing and new employees.

Multiple Marin County labor unions filed suit. Everyone accepts that pension benefits may be reduced, or even eliminated, for new employees, before they begin work. However, a massive body of California decisions going back at least four decades has universally held that pension benefits for existing employees cannot be changed once they start work unless the pension plan specifically allows for such change. Relying on this unbroken line of cases, the Marin unions argued that MCERA could not discontinue the inclusion of the various premiums as compensation earnable for classic employees.

The Court of Appeal disagreed. Dispensing with the arguments made by MCERA and the California Attorney General's Office (which intervened to defend PEPRA), the Court of Appeal ploughed a new furrow and concluded that public employee pensions may be modified, before retirement, so long as the pension benefit remains "reasonable."

The Court disputed what is perhaps the central tenet of vested pension law: that if a change in the pension system results in a disadvantage to employees; it "must be accompanied by comparable new advantages." It delved into whether, when the California Supreme Court used the word "must," it really meant "must." The Court concluded that the Supreme Court meant only "should." And since "should" really just means "ought to," it violates no legal right for the pension promise to be broken so long as the pension remains reasonable.

The Marin unions took their next steps, which included asking the California Supreme Court to review the case and provide guidance. This seems appropriate given the Court of Appeal's break with precedent, and reconfiguration of what has been a settled body of law. Just last year, a different panel of the First District Court of Appeal in Protect Our Benefits v. City and County of San Francisco held just the opposite in declaring that a charter amendment which eliminated a supplemental cost of living adjustment for retirees was unconstitutional. That panel restated the rule that if a change in the pension system results in a disadvantage to employees, it "must be accompanied by comparable new advantages."

I have received many calls in the recent weeks from those of you who have read other articles on this case and have asked if we should be concerned with it. The simple answer is yes we should. The longer explanation though, is we are far from panic mode in regards to this case – only because it's in Marin County as it stands today and it will be heard by the California Supreme Court. There will be more to come in regards to this case specific and specifically to this issue. As I receive any further information I will update all of you as to its content.

Take care of yourselves and one another.

-Eric

Happy Spring! The flowers are blooming and grass is tall and green all over the Central Valley!

I hope you are all drying out after a wet winter. Now, with an abundance of water, we can anticipate a busy summer with overflowing waterways within Fresno County. Undoubtedly, we can expect to answer a lot of calls near rivers and lakes as temperatures rise and recreation increases.

In this month's President's Message, I have included several articles that are pertinent and important for every employee who works at the Fresno County Sheriff's Office. The first article, taken from “The Labor Beat,” published by our firm Messing, Adam & Jasmine, addresses issues related to whether personal emails and text messages can be used or subpoenaed as part of various investigations or inquiries. The matter has been addressed by the California courts, and you should be aware of the current ruling.

The California Supreme Court, in yesterday's ruling in City of San Jose et al. v. Superior Court of Santa Clara County, held that communication about public business on a personal account may be subject to the disclosure requirements under the California Public Records Act ("CPRA").  Any public employee's personal records can become the target of a CPRA request and, therefore, be affected by this ruling.

In response to a CPRA request by Petitioner, the City of San Jose disclosed communications made using City phone numbers and email accounts, but not emails from individuals' personal accounts or texts from personal phone numbers. The City argued that personal accounts do not fall within the purview of the CPRA.

On appeal, the high court had to decide whether writings (including emails, text messages, and other electronic platforms) that concerned public business were within CPRA's reach even though they were sent or received on a non-governmental account. The Court rationalized that the CPRA's policy implications and statutory language answer this question in the affirmative. The Court recognized that not all employment-related activity occurs from 9-5 in the confines of an office. The type of account used to prepare or transmit messages is not determinative of whether or not the writing must be disclosed. 

Whether a writing is related to public business, however, will be up for debate. The Courts will look at several factors, such as the content, the context or purpose for which it was written, the intended audience, and whether the writing was prepared by an employee acting or purporting to act within the scope of his/her employment. "For example, depending on the context, an email to a spouse complaining 'my co-worker is an idiot' would likely not be a public record;" further, "primarily personal [communications] containing no more than incidental mentions of agency business, generally [also] will not" qualify for disclosure.

Overall, public employees must be cognizant of business-related messages sent from personal cell phones and or email accounts, as they could be subject to disclosure.

This article has been circulating amongst the ranks at the PORAC level and has been echoing a lot of what we have been discussing for the past few years. The author has outlined much of what we have been talking about for quite some time. This topic has brought about much discussion from many law enforcement association leaders across the state, as well as discussion amongst elected local and state leaders.

The following article highlights a problem that has been prevalent across the nation over the past few years. There are several effects of having fewer people willing to join the law enforcement profession. This article illustrates some of the fallout from a police officer shortage.

Law enforcement: It's a tough job but somebody's got to do it. But what happens when no one wants to be that somebody?

Numerous police departments around the country are desperately losing manpower with decreasing numbers of officers and recruits. Law enforcement is becoming less of a desirable career choice due to diminishing pay, high risk, and of course a recent bad rap — a trend that could put public safety at risk, say policing experts.

The current shortage afflicts police forces from large metropolitan hubs to rural towns.

"Departments are struggling to find not only interested, but interested and qualified, candidates to join the force," said Jim Burch, vice president of the Police Foundation. "With everything happening around policing from salary to criticism, the question many people are asking is 'is it worth it?'"

The economy has seen an uptick in recent years with 2.24 million new jobs added in 2016 and an unemployment rate below 5 percent — and years of continued economic expansion.

Good news for many — just not police departments.

"Every time the economy gets better, the police have a problem recruiting," said Nelson Lim, executive director of the Fels Institute of Government at the University of Pennsylvania. "It's like clockwork."

A blossoming job market means more career choices, said Darrel Stephens, executive director of the Major Cities Chiefs Association. Police departments can't always keep up with perks other professions in the private sector may offer, he said. "Salary and benefits have declined in many departments," he said.

The Bureau of Labor Statistics puts the growth rate for "Police and Detectives" as "slower than average" at 4 percent with the average growth rate at 7 percent for other professions. The bottom tenth-percentile for an officer's salary is $33,430, according to 2015 federal data.

"It's not an 8-5 job with weekends off," Stephens said. "The lifestyle is difficult for a lot of people."

The younger generation is looking for "work-life balance and flexibility, but officers work nights, they work holidays," he said.

Data on the extent of the shortage is limited to individual departments. There is no national, centralized data on police recruits or department numbers, said Lim. "The only way to find out is when individual departments release information. Otherwise nobody collects this information," he added.

The Roswell Police Department in New Mexico has been dealing with staff shortages for the last five years, said spokesman Todd Wildermuth. Roswell's police force, with a starting salary of $44,553, is currently down 20 percent from the allocated headcount, he said. The police force has been below its maximum headcount for years now, Mayor Dennis Kintigh said.

The Roswell Police Department, located 100 miles from the Texas border, competes with oil and gas jobs that might be more lucrative, he said.

Applying to be an officer requires several layers of "certifications, testing, and training," he said. Dissuading factors for some, he said.

Plus the job is also more vulnerable, said Donald DeLucca, president of the International Association of Chiefs of Police. "Last year some horrific things happened to police officers," he said.

He's referring to law enforcement fatalities, which were at their highest in five years in 2016, with 135 officers killed in the line of duty, according to the National Law Enforcement Officers Memorial Fund (NLEOMF).

Twenty-one were the result of ambush-style attacks, the highest in more than two decades, according to NLEOMF.

"Forty-two percent of officers reported that 'they nearly always or often have serious concerns about their safety,'" regardless of what level of danger an officer has come across in their career, according to the Pew Research Center.

Officers are frequently asked to defuse all kinds of dangerous situations, many that fall out of their jurisdiction, said DeLucca. "We're asked to do so much," he said. Not only "are we policing but we also act as de facto social services in many situations," he said.

Adding to the difficulties of recruiting officers are the numerous high-profile incidences — such as in Ferguson, Missouri, Chicago, and Baltimore — where police use of force touched off massive community unrest.

Confidence in police was at a 22-year low in 2015 — inching only minimally higher last year, according to a Gallup poll.

"If so many agencies are struggling with staffing, the issue goes beyond compensation and benefits," Burch said. "It is a difficult time to be a police officer with the increased amount of criticism and negativity surrounding the profession," he said.

"It's a thankless job, and it's become more so recently," said Roseville, Michigan, Police Chief James Berlin. He's been aggressively recruiting for a short-staffed force for the last two years. "You'll be criticized and degraded, and many people think 'who wants to do that?'" Berlin said.

While there is no definitive correlation to attitudes towards policing and the numbers, Michigan law enforcement has lost more than 300 officers from the job since 2012, according to the Michigan Commission on Law Enforcement Standards.

But those isolated acts make it more important to take your time in finding the right person, he said. "Maybe the officers in those situations shouldn't have been hired to begin with," Berlin said.

"Policing now calls for the best," said DeLucca. "We've got to get it right more than ever."

"Let's get the most qualified people hired … that will naturally reduce these types of incidents," said Edward Medrano, incoming president of the California Police Chiefs Association. It's not always that there aren't enough applicants, it's getting harder to find the right applicants, he said.

There is no "quantifiable relationship between number of police officers and crime," said Arthur Lurigio, a criminology professor at Loyola University in Chicago "Nonetheless, if the number of experienced police officers and detectives decreases and are replaced by less-seasoned personnel, that could lead to less effective policing and therefore more disorder and crime," he said.

For a city of a little over a million, San Jose, California has a police force of only 800 officers, said Officer Albert Morales, a San Jose Police Department spokesman. "The force has not been able to keep up with the growth in population," he said. In fact, the city was down almost 50 officers since the same time last year, he said.

While the city has not hit any crime-infested breaking point, the pattern is certainly a common one in both small and big departments alike, he said.

The first sign that something is wrong is when "response times start getting longer and longer," Burch said. And when that reaches a dire level, public safety could be at risk, he said.

"If the situation becomes that extreme, police leadership will say it's no longer safe for officers to go into a situation because they don't have any backup," he said.

While Burch says this hasn't happened yet, the public should recognize that this is an important job that needs to be properly manned.

For many officers it goes beyond numbers or risk, Morales said. "Becoming an officer is more than a job, it's a calling," he said. 

Looking ahead toward summer and the 4th of July- we were not selected in the lottery to have a fireworks stand. Hopefully next year we will have better luck!

Take care of yourself and take care of the ones you work with.

 

All my best,

Eric

Hope you enjoying the wide variety of weather we've been receiving over the past few months! 2017 has brought us showers, sun, floods and now we are finally drying out. Those patrolling the west side have had the opportunity to even monitor a levee that is teetering on the brink of overflowing.

I wanted to recap the TELADOC benefit we received during the insurance negotiations with Blue Shield for the current plan this year. I talked about it briefly in one of the prior President's Messages, and wanted to recap it for all of you. This is an enhanced benefit that we saw no out-of-pocket cost on. Already I've received feedback from a few members who have used the benefit and many of those- including myself, have signed up for it via the IPhone/Android Application. So far, the reviews have been all positive.

Blue Shield launched this program to its customers this plan year, with no cost to our plan. Teladoc’s board-certified doctors are available 24/7, 365 days a year to resolve many health related problems one may have during a non-emergency medical issue. This is accomplished through phone or video consultations.

The primary purpose and usage of Teladoc is when you are considering a trip to the emergency room or urgent care for a non-emergency. For example, if you are on vacation, a business trip, away from home, or need a short-term prescription refill.

Teladoc doctors can treat many medical conditions including;

Teledoc doctors are all practicing PCP’s, pediatricians, and family physicians. They have an average of 15 years of experience and are all board certified and licensed. Each one is credentialed every three years.

You will continue to see us remind you about this benefit and why it's a low cost, worthwhile and convenient option. Not only is it a $5 co-pay, it will also greatly reduce our overall exposure on the insurance plan. This will allow us the flexibility of future out-of-pocket costs on our health insurance.

By Anthony Gomez – FDSA 2nd Vice President

On February 9th, 2017 the Fresno Deputy Sheriff’s Association ratified a substantial, groundbreaking new contract with the County of Fresno. This deal came about after many years of modest contract increases and even a painful decrease, which included furloughs and salary reductions at the onset of the Great Recession. Led by Chief Negotiator Gary Messing and FDSA President Eric Schmidt, the association was able to strike a deal that was flush with improvements and lacking any takeaways for the membership.

Prior to entering into formal negotiations with the County of Fresno, the FDSA Board polled its membership to determine the most pressing wants/needs throughout each job classification. As a result of this poll, emphasis was placed on salary improvements, but other realistic requests were also considered. The FDSA also utilized compensation surveys to compare the various classifications in the Association with those in comparable jurisdictions. A forensic audit of the County’s finances was conducted in order to determine their fiscal health. Armed with this information, Gary Messing and Eric Schmidt began extensive conversations over a period of several months leading up to formal negotiations.

Meanwhile, Eric Schmidt has been attending every Board of Supervisors meeting for the last nine years in order to show an ongoing presence and to stay abreast of important topics being discussed. Along those lines, the FDSA Political Action Committee endorsed and campaigned for candidates it believed would place an emphasis on public safety. Eric also continued to build upon an already strong relationship with the County of Fresno Director of Personnel Services, Paul Nerland. Over time, Eric and Paul had numerous conversations, but quickly agreed that the FDSA should be acknowledged for many years of cooperation during hard times. Paul recognized that the FDSA always led the way for other bargaining units as an example of collaboration.

Prior to ratification of the contract that benefitted the entire Association, President Schmidt was able to convince the County that the wage disparity between Fresno County Sheriff’s Office Dispatchers and their counterparts in other agencies could no longer be ignored. After a salary compensation study was completed, the county agreed to immediately grant a 10% salary increase to all Dispatchers in the FDSA in order to address retention and recruitment in the communications center, which has endured a drastic reduction in staffing levels. This salary increase at the Dispatcher level is on top of the additional benefits gained in the new contract for the entire Association.

The newly ratified MOU spans a time frame of almost three years and concludes in December of 2019. The MOU bestows improvements to all classifications in the bargaining unit which includes Deputy Sheriffs, Dispatchers, Deputy Coroners, Identification Technicians, Community Service Officers, Crime Lab Personnel, and the Rangemaster. The prominent feature of this MOU is that all members will receive a 5% salary increase in July of 2017, another 5% salary increase in July of 2018, and a final 5% salary increase in July of 2019. Compounding these increases results in an almost 16% salary increase over the life of the contract.

Over the course of the contract term, health insurance contributions from the County of Fresno to each member will increase from $243 bi-weekly to $298 bi-weekly for member-only health plans. For members with dependent coverage, the health insurance contributions increase from $333 bi-weekly to $448 bi-weekly. This equates to an increased benefit of $120 per month for members without dependent coverage and $250 for members with dependent coverage.

The FDSA Insurance Trust is personally managed by its own members and is separate from the Fresno County various health plans that are offered. The FDSA Insurance Trust recently negotiated two consecutive years of reductions to their health plans which resulted in a total savings of about 10% across the board for all health plan options. Factoring in the increased contributions by the county, combined with additional anticipated health plan cost savings in future years, some members could realize a net of zero dollars deducted for their health insurance premiums.

Other benefits outlined in this MOU are increases to uniform allowances for Deputy Sheriffs and Community Service Officers that gradually go from an annual sum of $500 today to an annual sum of $1000 in January of 2019. Additionally, all other classifications in the bargaining unit (except Dispatchers) will now also enjoy an annual uniform allowance for the first time; $250 in January of 2018, increasing to $350 in January of 2019. Pilots and Tactical Flight Officers in the Fresno County Sheriff’s Office Air Support Unit will see their incentive pay more than double. Pilot bi-weekly incentive pay will increase from $300 to $750 while Tactical Flight Officer bi-weekly incentive pay will increase from $200 to $400. Graveyard shift differential pay will gradually be fully restored to the 8% that it was prior to the Great Recession, rather than the 4% that it is today.

The agreed upon MOU also contains protections for current and future salary disparities among the various classifications within the bargaining unit by way of contract reopeners. The first contract reopener calls for a salary study to be conducted for Community Service Officers, Deputy Coroners, Crime Lab Personnel, and Identification Technicians. The costs of the studies are to be shared between the FDSA and the County of Fresno. The studies will compare the salaries of the aforementioned classifications in Fresno County to those in other agreed upon jurisdictions.

There is also a separate contract reopener specifically intended to address any potential salary disparity for Deputy Sheriffs. The reopener calls for a continuous comparison between the salary of a top-step Fresno County Deputy Sheriff III and that of a top-step Fresno City Police Officer II (an equivalent rank comparison). Should the salary of a Fresno City Police Officer II surpass that of a Fresno County Deputy Sheriff III, the FDSA and the County will negotiate for additional increases. This important consideration is intended to address retention and recruitment in the Deputy Sheriff Classification. Additional reopeners were included to study the impact of Productive Time, the County’s “Return to Work” Program which streamlines the worker’s compensation process, and future considerations of Detective Incentive Pay.

Depending on which classification one belongs to, the total compensation of this package ranges anywhere from 20%-35% worth of enhancements. The FDSA anticipates this MOU being applied up the ranks within the Fresno County Sheriff’s Office so that other bargaining units can reap the benefits of all the work that has been expended over more than a year. The Fresno Deputy Sheriff’s Association Board, along with Messing, Adam & Jasmine, are very proud to be able to bring forth this contract to the membership. The bargaining team of Gary Messing, Eric Schmidt, Isaac Torres, Anthony Gomez, and Kelly Mayfield worked tirelessly to achieve this result and all are pleased with the outcome for the Association.

 

I would like to thank each and every one of you for listening to the presentation and details about the new MOU. Thank you for your thoughtful questions and constructive praise and criticism. Although some may never understand, the negotiation process is extremely grueling and not for the faint of heart. It is a long process that is incredibly stressful. For those who are willing to consider taking a seat at the bargaining table, please think about being on our negotiating team. It's definitely an opportunity that provides invaluable insight into the process and battle for better wages and working conditions.

Stay safe out there.

My best,

Eric

The new year is off to a very good trend thanks to a series of significant storms that swept through the Central Valley. In just one month, the rainfall totals have us climbing out of extreme drought status! They also provided some beautiful snowy views for those who patrol or have visited the mountain areas of Fresno County.

With each passing day- it becomes clearer that the war on pension is going to continue until a decision is handed down by a higher court. It seems the recent ruling by some of the Court of Appeals justices is complicating the matter as to what is a “promised benefit” and what is “perceived” as one.

I have attached an article that gives insight to further attacks on the public pension system. This article was written by Reporter Ed Mendel. He covered the Capitol in Sacramento for nearly three decades, most recently for the San Diego Union-Tribune.

Although this is a CALPERS/CALSTRS publication article, it’s relevant and important. Consider this- every public pension, (whether it’s CALPERS, 1937 Act, or private pension through one of the five cities within California), is being attacked. One case in particular is in Marin County – a 1937 Act County. The case is currently being reviewed by the California Supreme Court. Our law firm, Messing, Adam & Jasmine is the primary counsel on this case and it patiently waiting for the ability to argue their points in front of the justices.

The article is very well written and gives a quick snapshot into what we have all been concerned about for many years.

Since the latest recession in 2008- some have blamed public employees for the stock market crash and unbalanced government budgets.

It remains unclear what effects this could mean for those who have been promised these benefits. It’s created a lot of uncertainty and no definite answers.

For the last 50 years, pension has never been contentious at the bargaining table. This is true for both safety and non-safety employees.

For Safety members in Fresno County and throughout the state, public safety pensions have been a historical recruitment tool. Now- this is not to infer pension have never been manipulated from their onset – in relation to the benefits they provide. But the pension system, has had a strong foundation.

From purely a bargaining standpoint – this significant lifetime benefit will be looked at and analyzed as much as a ‘uniform allowance’ has in the past. Opponents of public pensions are waiting – or even demanding intense scrutiny of this system.

A second appeals court panel has unanimously ruled that the public pension offered at hire can be cut without an offsetting new benefit, broadening support for what pension reformers call a “game changer” if the state Supreme Court agrees.

The new ruling on Dec. 30 in a state firefighters suit on pension-boosting “airtime” purchases made several references to a groundbreaking ruling last summer in a Marin County pension “spiking” suit.

“The law is quite clear that they are entitled only to a ‘reasonable’ pension, not one providing fixed or definite benefits immune from modification or elimination by the governing body,” wrote Justice Martin Jenkins.

The two appeals court rulings are contrary to previous rulings known as the “California rule”: The pension offered at hire becomes a vested right, protected by contract law, that can only be cut if offset by a comparable new benefit, erasing any savings.

Most pension reforms are limited to new hires (who are not yet vested), taking decades to yield significant savings. To get major savings, some reformers want to cut the pensions of existing workers, protecting what’s already earned but reducing future pension earnings.

A key to the California rule is a 1955 Supreme Court ruling (Allen v. City of Long Beach)that “reasonable” pension changes should be related to the theory and “successful operation” of a pension system and any disadvantage “should be accompanied by comparable new advantages.”

The Marin appellate ruling argued in detail that “should” have comparable new advantages, which is only advisory, had somehow become a mandatory “must” have comparable new advantages in the series of California rule cases.

“We agree with this conclusion reached by our colleagues,” Jenkins wrote.

Unions argued in the Marin and firefighters suits that the California rule prevented the bans on “airtime” and “spiking” for existing workers in a pension reform enacted four years ago by Gov. Brown and the Legislature.

Cal Fire Local 2881 (formerly known as CDF Firefighters) sued the California Public Employees Retirement System to resume employee airtime purchases, citing CalPERS’ own publication saying vested pension rights begin when members start work.

“Public employees obtain a vested right to the provisions of the applicable retirement law that exists during the course of their public employment. Promised benefits may be increased during employment, but not decreased, absent the employees’ consent,” said the CalPERS publication.

Critics of the California rule argue that if the employee’s job and pay can be cut, why can’t the pension legally regarded as “deferred compensation” be cut? The brief 1955 Allen ruling gives no rationale for a “comparable new advantage.”

The CalPERS response to the firefighters said the pension system could not resume airtime purchases without a determination that the ban is unconstitutional. The trial court held airtime “was not a vested right,” said CalPERS, “and even if it were, the Legislature could eliminate it.”

Legislation sponsored by the California Professional Firefighters and the Service Employees International Union (AB 719 in 2003) allowed employees in CalPERS to increase their pensions by purchasing up to five years of additional service credit, the maximum allowed by federal tax law.

The program intended to have no cost to employers was informally called “airtime” because no work was performed for the service credit. Airtime yielded a lifetime monthly retirement payment, with no risk of investment losses, based on the earnings forecast assumed by CalPERS at the time of purchase.

The earnings forecast was 8.25 percent a year when the program began in 2003, but had dropped to 7.5 percent by the time the program ended in 2012. The CalPERS board acted last month to gradually drop the earnings forecast to 7 percent over the next eight years.

“It’s a tremendous investment,” Dan Pellissier, president of California Pension Reform, a former gubernatorial and legislative aide who purchased airtime, said in 2012. “I think all of the investment advisers say it’s a no-brainer.”

As it turned out, airtime was an even better deal than the purchasers thought. The trial court ruling in the firefighters suit said CalPERS discovered some time after April 2010 that it had been charging purchasers less than the actual cost of airtime.

The CalPERS “Review of Additional Retirement Service Credits” study said in effect “that in selling Airtime to state employees CalPERS was selling $1.00 worth of benefits for between $0.72 and $0.89,” wrote Alameda County Superior Court Judge Evelio Grillo.

The study was not available from CalPERS last week. A CalPERS spokeswoman said about 61,217 members purchased airtime from Jan. 1, 2004, when the program began through Dec. 31, 2012, when it ended.

There was no significant increase or rush to purchase airtime between the passage of the reform legislation in October 2012 and when the ban took effect at the end of that year, the spokeswoman said. There were 363 airtime purchases in October, 376 in November and 386 in December.

CalPERS members could pay the full cost of airtime with a lump sum or select a payment plan of up to 15 years. Interest was charged on the unpaid balance at the current “crediting rate,” which was 6 percent compounded annually in 2003.

The elimination of airtime was part of Brown’s 12-point pension reform plan issued in 2011.

“Pensions are intended to provide retirement stability for time actually worked,” said Brown’s point No. 10. “Employers, and ultimately taxpayers, should not bear the burden of guaranteeing the additional employee investment risk that comes with airtime purchases.”

The ruling in the Marin suit allows the county, with no offsetting new benefit, to impose the spiking ban in the 2012 reform legislation that prevents existing workers from continuing to boost pensions with standby pay, call-back pay, and other things.

The state Supreme Court has agreed to hear an appeal of the Marin ruling. But the high court will wait until an appeals court rules on three similar spiking ban suits consolidated from Alameda, Contra Costa, and Merced counties.

Last month, yet another three-justice appeals court panel upheld a denial of a claim by San Joaquin County correctional officers that the 2012 pension reform prevented an end to county payments toward their cost-of-living adjustments until 2018.

This appeals court ruling included lengthy quotes from the Marin ruling about how the 2012 pension reform was a response to a pension funding “crisis” that will force cuts in local government services and layoffs if not corrected.

“We express no view about the Marin Assn. court’s interpretation of precedent regarding the validity of changes to retirement benefits,” said a footnote in the San Joaquin ruling. “We merely agree with its account of the historical backdrop animating recent pension reform legislation in California.”

 

We are continuing talks with the County of Fresno in order for both sides to reach an agreement for a successor MOU. These discussions started informally in May of 2016, when we reached out to the County Labor Manager, Paul Nerland to open discussions.

To date, we have met on seven separate occasions, to try and reach a compromise on a successor Memorandum of Understanding or MOU. Discussions initially progressed and then regressed.

One of the highlights of these discussions has been having county officials acknowledge the 2015 salary survey conducted regarding the dispatcher classification. The discussions resulted in an immediate 10% equity adjustment, based on one of the re-openers from our last contact. The adjustment will still need to be increased another 7-10% to be solvent, but the 10% for the dispatchers here was a very successful addition to their job specs.

The FDSA is constantly reminding the Board of Supervisors of the shortfalls in salary and benefits this organization faces compared to others we have surveyed.

Thank you for your patience. Negotiating benefits can be a time consuming, tedious and stressful process.

Once an agreement is reached by the FDSA bargaining team and County of Fresno- it will then be brought to the membership for ratification.

I will continue to work on behalf of every FDSA member, for fair and equitable benefits and working conditions.

Truly,

Eric