LDF PROVIDES ASSISTANCE
SEEKING TO OVERTURN AN
ERRONEOUS COURT ORDER
Redondo Beach management
were involved in a series of high-profile disputes with various employee
groups. In one incident, three city department heads were caught in an
audio/visual room surreptitiously watching a meeting of the Redondo
Beach POA (RBPOA). Thereafter, the city terminated the city manager,
Will Kirchhoff. Kirchhoff not satisfied with his existing severance
contract, sued the city and the RBPOA. In his claim against RBPOA, he
alleged that the city and RBPOA conspired to deprive him of his civil
rights because he claimed (wrongly) that he was terminated as a result
of an investigation into police department overtime.
RBPOA vehemently denied
the contentions. Nonetheless, it was forced to defend the lawsuit.
Because RBPOA did not have any applicable insurance, it hired Silver,
Hadden & Silver.
An interesting issue
arose during the case's discovery phase. Kirchhoff's attorneys served a
set of questions and also served a request for documents. The responses
to such discovery requests must be certified to be accurate. The request
was made to RBPOA but sought information and documents from the
individual members. The discovery laws require that a party responding
to discovery must also inquire of its agents and employees. Generally,
there is no need to inquire of those people who are not agents or
employees who would be equally accessible to the asking party.
RBPOA, for the same
reasons as other peace officer associations, was formed as a mutual
benefit corporation for the purpose of securing advantageous employment
benefits and working conditions for its sworn employees. RBPOA objected
to the requests, in part, because, as a corporation, it acts only
through its Board of Directors and its one part-time employee. As a
result, the members of RBPOA, who were not named as individual parties
to the action, were not employees or agents of the corporation unless
they were fulfilling a specific request of the Board of Directors.
The discovery requests
were very broad and asked for information that easily could be protected
by the individual members’ rights, including their First Amendment
rights of free speech and freedom of association. RBPOA's concern about
responding to the discovery requests included (1) how could RBPOA force
its members to respond? (2) how could RBPOA be sanctioned for failing to
ensure that its members responded? (3) how would RBPOA be in a position
to ensure that the responses provided by the members were accurate? (4)
how would the individual members be in a position to raise their own
legal objections or privileges to any of the requests, including
objections which could implicate the individual members rights of
privacy and/or First Amendment rights? and (5) why would RBPOA be
obligated to conduct an investigation for Kirchhoff when his attorneys
could conduct their own investigation by asking for the same information
from the non-employee members?
As a result of RBPOA's
concerns, it refused to respond on behalf of its members. Kirchhoff
brought a motion in court to compel a response. The Superior Court
judge, in a contentious hearing, issued an ambiguous ruling and said
that RBPOA had an obligation to inquire and provide the responses (The
order was uncertain because it was unclear if the judge ordered RBPOA
merely to inquire of its members, or whether RBPOA also had to ensure
that it provided the requested information even if the members choose
not to respond).
Recognizing the
importance of the issues to all police officer associations and the need
to protect the individual members' rights, the LDF trustees granted
affirmative relief coverage to appeal the judge's ruling. A
"Petition for Writ of Mandate, Prohibition, Certiorari, or Other
Appropriate Relief" was filed with the Court of Appeal. Such a
petition during the pendency of a case constitutes a request for
extraordinary relief and it is not mandatory for the Court of Appeal to
agree to hear these petitions.
In the petition RBPOA
raised its concerns and also argued that its members are no different
than the members of a credit union in that the purpose is to obtain
advantageous benefits for its members. Thus, while the members vote for
the board of directors, if a credit union were sued for allegedly
violating someone's civil rights, it is unfathomable that the credit
union would be required to contact each of its non-employee, non-agent,
members to obtain their discovery responses. Additionally, all such
members would be equally accessible to the party requesting the
information. Identical issues would exist for the shareholders of a
corporation when the corporation is the recipient of discovery. As a
result, RBPOA argued that the Court of Appeal should rule on the
propriety of the judge's order.
Unfortunately, the Court
of Appeal declined to hear the petition, holding that the petition was
"denied for failure to demonstrate entitlement to extraordinary
relief". Thus, although RBPOA and LDF's board of trustees believed
that the petition has significant merit and that the Superior Court's
decision was incorrect, the Court of Appeal declined to hear this
discovery petition because the issue could again be raised at the time
of an appeal after a judgment. The Court of Appeal apparently was
unpersuaded by our concerns that by not ruling RBPOA would be forced to
respond to the inappropriate discovery.
Because of the ruling,
RBPOA prepared responses to the discovery requests. Fortuitously,
however, RBPOA did not have to further pursue its objections or the
appeal because shortly after the Court of Appeal ruling the case was
resolved.
As an epilogue,
associations should strongly consider obtaining separate insurance to
protect themselves from the defense costs associated with allegations of
wrongdoing as well as to indemnify associations for any award that may
be issued. Although the LDF trustees were able to assist RBPOA on this
issue, RBPOA nonetheless incurred substantial attorneys fees to defend
itself against the allegations.
Additionally, RBPOA kept
good minutes of their board meetings which would have been helpful if
the case had proceeded to trial. As is common in employee associations,
there often are changes in leadership which create difficulty in
remembering what official actions occurred. Associations should strive
to keep accurate and complete records to assist when, and if, a claim of
wrongdoing is made.
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