{"id":2042,"date":"2021-07-02T17:29:43","date_gmt":"2021-07-02T17:29:43","guid":{"rendered":"https:\/\/www.stonebusailah.com\/?p=2042"},"modified":"2021-07-02T17:29:43","modified_gmt":"2021-07-02T17:29:43","slug":"directive-not-to-contact-witnesses-improper","status":"publish","type":"post","link":"https:\/\/villagegreentesting.com\/StoneBusailah\/2021\/07\/02\/directive-not-to-contact-witnesses-improper\/","title":{"rendered":"DIRECTIVE NOT TO CONTACT WITNESSES IMPROPER"},"content":{"rendered":"\n

Author: Robert Rabe, Esq.<\/strong><\/p>\n\n\n\n

The County initiated an investigation focused on Lance Scimeca concerning an alleged violation of a workplace communications policy. Scimeca was placed on administrative leave and directed to stay away from the Sheriff\u2019s Office unless directed to enter by a captain. Scimeca was also given the following order: \u201cYou are hereby ordered not to discuss this matter with any, witnesses, potential witnesses, the complainant, or any other employee of the Sheriff\u2019s Officer other than your official representative.\u201d<\/em> All individuals placed on administrative leave pending an investigation for alleged misconduct are given the same directive. According to the Undersheriff, it was standard practice in the Sheriff\u2019s Office to separate witnesses from officers who are under investigation to prevent \u201ccollaboration and tainting of the witnesses or the subject officers.\u201d<\/p>\n\n\n\n

The Administrative Law Judge (ALJ) hearing the matter, observed that \u201ca workplace rule that infringes on [the right of employees to discuss with each other working conditions] may be valid only where the employer demonstrates a legitimate and substantial business justification.\u201d The ALJ found that the directive restricted Scimeca\u2019s right to communicate with his fellow employees concerning working conditions, namely the \u201cmatter\u201d that caused the Sheriff\u2019s Office to place him on administrative leave. This placed the burden on the County to establish a substantial and legitimate business justification for its directive.<\/p>\n\n\n\n

The County argued that the directive was justified because management needed to: (1) ensure the investigation was free from improper collusion or coercion by the subject employee; and (2) treat all employees the same with respect to restrictions when it conducts an investigation into misconduct. The County also asserted that the order was necessary because the environment in which correctional deputies work is dangerous with real threats of violence.<\/p>\n\n\n\n

The ALJ rejected these justifications because they articulated only general concerns unconnected with the particular investigation of Scimeca. There were no facts presented indicating that the safety of inmates or employees was compromised by Scimeca\u2019s alleged misconduct, or that he abused inmates or abused his position or intimidated his coworkers or inmates. The ALJ referenced a NLRB decision that explained how it was the employer\u2019s burden \u201cto first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.\u201d The ALJ concluded: \u201cIn short, the County gives very little beyond its own characterization of the conduct as egregious to warrant denying Scimeca his right to meet and confer with coworkers about working conditions.\u201d Because the County failed to meet its burden, the ALJ ruled that it violated the MMBA by restricting Scimeca\u2019s right to discuss with his coworkers working conditions, including the County\u2019s pending investigation of his alleged misconduct. The ALJ ordered the County to rescind the directive and cease and desist from interfering with Scimeca\u2019s rights.<\/p>\n\n\n\n

The PERB observed that there is \u201cno more fundamental right afforded employees \u2026 than the right to communicate with others about working conditions.\u201d \u201cWorking conditions\u201d include the circumstances underlying and surrounding an investigation into alleged employee misconduct. The PERB noted that \u201cthe directive \u2026 prohibited Scimeca from communicating with his co-workers about the matter for which he was being investigated. He thus was prevented from contacting potential witnesses, or from making other inquiries that could help him prepare for his investigatory interview. This, in turn, prevented him from giving effective assistance to [the Correctional Peace Officers\u2019 Association] in its representation of him in the investigation.\u201d Thus, the directive harmed Scimecca\u2019s right to discuss working conditions with fellow employees, as well as the Association\u2019s right to communicate with employees under investigation and therefore its right to represent employees.<\/p>\n\n\n\n

The issue the PERB had to address in this case, was whether the rule requiring an employer to provide a case-specific \u201clegitimate and substantial business justification\u201d for a directive not to discuss an ongoing investigation applies to public safety employers. The County asserted that it was prevented from providing the information to fully explain the rationale behind the directive \u201cbecause the employee, Scimeca, refused to waive the privacy rights unique to peace officers, thus tying the County\u2019s hands and preventing the County from fully explaining the significance and importance of [the directive] in this case.\u201d The PERB rejected that argument, noting nothing prevents a public safety employer from filing a Pitchess<\/em> motion or utilizing another procedure for protecting peace and custodial officer personnel records in a PERB unfair practice hearing, which the County made no attempt to do. The PERB concluded that the requirement to provide a case specific justification would apply to public safety employers<\/em>, and affirmed the ALJ\u2019s conclusion that the County violated the MMBA. <\/p>\n\n\n\n

Absent a valid case specific justification that confidentiality is justified, public safety employees should, following this decision, be able communicate with potential witnesses, including fellow employees, about the incident for which they are under investigation. This will allow the individual officer under investigation, and their union representative, to properly prepare for the investigatory interview.<\/p>\n\n\n\n

Note: This decision does not provide authority for an officer to ignore or disobey a “no contact” order. If you’re given a directive, similar to that given to Scimeca in this case, without being told the circumstances justifying why, or if your employing agency continues to give a similar \u201cstandard\u201d directive without proper justification, you may want to bring this decision to the attention of your association or union for possible action. It may become necessary for the PERB to issue more \u201ccease and desist\u201d orders before all public safety employers understand what they can, and cannot, do during an investigation into possible employee misconduct.<\/p>\n\n\n\n

Stay Safe!<\/strong><\/p>\n\n\n\n

Robert Rabe<\/strong> is Stone Busailah, LLP\u2019s writs and appeals specialist. His 40 years practicing law include 16 years as a Barrister, Supreme Court of England and Wales, practicing in London, England.<\/p>\n","protected":false},"excerpt":{"rendered":"

Author: Robert Rabe, Esq. The County initiated an investigation focused on Lance Scimeca concerning an alleged violation of a workplace communications policy. Scimeca was placed on administrative leave and directed to stay away from the Sheriff\u2019s Office unless directed to enter by a captain. Scimeca was also given the following order: \u201cYou are hereby ordered […]<\/p>\n","protected":false},"author":1,"featured_media":2043,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18],"tags":[],"class_list":["post-2042","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-pobra"],"_links":{"self":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2042","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/comments?post=2042"}],"version-history":[{"count":0,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2042\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media\/2043"}],"wp:attachment":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media?parent=2042"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/categories?post=2042"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/tags?post=2042"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}