A. Contract Negotiations:
Shelley Smith reported that
the M.O.U. prepared by the CAO’s Office lacked language regarding
elimination of the wall between Deputy City Attorney I and II.
Shelley Smith drafted appropriate language and gave it to the
CAO for inclusion in the M.O.U. It is expected that the M.O.U.
will be presented to Council during the week of April 1. The Board
has encouraged the C.A.O. to move the contract promptly.
B. Meet and Confer:
In January of 2002, without
first meeting and conferring with the Association, the Chief Deputy
announced that any award of sanctions by a court requires the
assigned attorney to personally meet with Mr. Bowers, after which
a memorandum will be placed in that attorney’s personnel
file. On February 21, 2002, the Board delivered a written demand
to management that it cease implementation of that policy and
that management meet and confer prior to adopting and implementing
any disciplinary standard relative to attorney sanctions. In response,
management agreed to meet and confer about the issue.
On March 21, 2002, management
(Chief Deputy Terree Bowers and Chief Administrative Officer Jennifer
Kreiger) and the Association met and conferred regarding the sanction
disciplinary policy. The parties reached the following tentative
agreement: If an attorney is sanctioned, but no culpable conduct
underlies the sanctions order, Mr. Bowers may meet with the attorney,
but no memorandum may be placed in any file maintained by management
pertaining to the attorney. If an attorney is sanctioned and there
is culpable conduct, if it is the first such incident by the attorney,
the attorney will be verbally admonished. A memorandum of the
incident will not be placed in the attorney’s personnel file,
but one may be placed and maintained in an administrative file
for reference in the event that subsequent conduct demonstrates
a pattern of culpable conduct. If no further culpable conduct
occurs within a reasonable period of time, management may remove
the memorandum from the administrative file. If an attorney is
sanctioned and there is culpable conduct, and it is the attorney’s
second or further such incident within a reasonable period of
time, management may place a memorandum of the incident in the
attorney’s personnel file.
Importantly, if during the investigation
of an order re sanctions, management chooses to question or counsel
an attorney about an award of sanctions, management acknowledges
the right of the attorney to have an Association representative
present.
It was agreed that the Association
would prepare an initial draft of the disciplinary policy, subject
to the review of management and further negotiations as necessary.
There was discussion about Terree
Bowers’ statement at the March 21 managing assistants’
meeting that explicitly affirmed his previous instruction for
memos in attorneys’ personnel files in the event of sanctions,
even as he acknowledged to the managing assistants at that meeting
that the meet and confer on that subject would occur later that
same day. There was discussion that the statement affirming a
policy that was pending meet and confer was a potential violation
of the duty to meet and confer in good faith and a separate unfair
employee relations practice. The Board determined that, in light
of the tentative agreement reached later that afternoon on the
matter of the policy, the Association would rest on the expectation
that management will honor its agreements and obligations to meet
and confer. This issue will be revisited in the event that further
instructions to supervisors by the Chief Deputy evidence that
agreements to meet and confer are sham or pretense.
C. Insufficient Number of
Bulletin Boards
On March 6, the Board delivered
a letter to Jennifer Kreiger identifying work sites that lack
contractually-required bulletin boards dedicated to Association
matters, and asked her to rectify this matter. On March 21, Ms.
Kreiger told Association Secretary Judith Reel that the needed
bulletin boards would soon be ordered and installed.
D. Recall Petition
A petition was previously presented
to the Association asking for a recall of the Association President.
The basis of the petition was a complaint regarding the manner
in which ballots were received and counted during the previous
election. At the last Board meeting, the Board appointed a sub-committee,
consisting of Board members Secretary Judith Reel, Criminal Director
Bob Fratianne, and Civil Director Marsha Berkowitz, to make a
recommendation regarding the sufficiency of the petition.
The sub-committee reported that
the petition contained the minimum number of signatories needed
to constitute a valid petition, plus one. Since one member signed
the petition twice, however, the petition would meet by-law requirements
only if all of the remaining signatories were eligible voting
members of the Association. Sixteen of the signatures submitted
did not include a printed version of the signer’s name, and
many of these sixteen signatures were illegible. The committee
exercised due diligence, cross-checking signatures with a membership
list, but was not able to validate the requisite number of signatures
on the petition. On that basis, the committee recommended to the
Board that the petition be rejected without prejudice. In making
this recommendation, the sub-committee recognized not only its
obligations to the signatories, but also the fiduciary obligations
to the membership-at-large, given the high cost of an election.
The Board voted unanimously,
with Shelley Smith abstaining, to adopt the sub-committee’s
recommendation to reject the petition without prejudice. It was
further agreed that the Board would send a letter to all signatories
whose names were legible explaining the reasons for the rejection.
Board President Shelley Smith abstained from both the discussion
and vote regarding the recall petition.
A. Meet and Confer re: Green
Sheets
At its meet and confer session
on March 21, pertaining to the Office disciplinary standards re
attorney sanctions, Board members and management also discussed
the Office’s recent restriction of certain job vacancies
to members of the Criminal Branch. The Board members present stressed
the historical commitment of the Office to making job opportunities
available to all attorneys, and identified the demoralizing effect
of a unilaterally imposed and unexplained restriction.
Management stated that it restricted
recent attorney transfer opportunities to Criminal Branch members
due to a current shortage of attorneys in the Civil Branch, and
the inability of the Civil Branch to sustain any losses of attorney
staff at this time. Management stressed that the transfer opportunity
restriction was temporary, and represented that after the budget
is finalized it will seek a more equitable solution to the problems
caused by insufficient staffing in the Civil Branch. Management
agreed that it would have been better to have had prior discussions
with the Association about this matter and the need for the temporary
restrictions. Further, management acknowledged the need for open
communication with the Association and invited the Board to informally
meet on a monthly basis with Mr. Bowers.
B. "Confidential"
Office Policy re Discovery in Civil Branch cases
Some members have expressed
concern about the policy re discovery of Criminal Branch records
in Civil Branch litigation. At the top of the memorandum promulgating
the policy, Chief Deputy Terree Bowers included a prominent warning
that the policy was for internal use only and was not to be revealed
or disseminated outside the office. Some attorneys are concerned
that secret policies are inimical in a public law office, especially
on matters affecting the rights of criminal defendants and civil
litigants and the abilities of the private bar in representing
these persons. Other members are concerned that the mandatory
meet and confer process prescribed by California statute for resolution
of discovery disputes cannot be fulfilled in good faith if Civil
Branch attorneys are prohibited from making reference to an official
policy which limits the discovery that can be produced. There
are substantial questions as to whether an attorney is at risk
for allegations of insubordination or other misconduct if in the
course of discovery meet and confer the attorney reveals or refers
to the "internal -- not to be disseminated" policy to
an opposing counsel or to the court or discovery referee. President
Shelley Smith will request from the Chief Deputy clarification
on this issue, and the Board will reconsider this matter if that
communication does not resolve these questions.
C. Peer Advocates
The Board restated its intention
to organize a training session about employee rights and responsibilities,
and to train Association members to serve as peer advocates. It
was agreed that Ms. Reel would send out a Notice asking that any
Association member who desires to receive such training contact
a Board member so that we can arrange for training.
