City of Folsom (PERB 1539M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARK SIROKY,
Charging Party, Case No. SA-CE-54-M
v. PERB Decision No. 1539-M
CITY OF FOLSOM, June 26, 2003
Respondent.

Appearance: Mark Siroky, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Mark Siroky (Siroky) of a Board agent’s dismissal (attached) of
his unfair practice charge. The charge, as amended, alleged that the City of Folsom (City)
violated the Meyers-Milias-Brown Act (MMBA)’ by retaliating against him, an alleged
violation of MMBA section 3506 and Government Code sections 53298(a) and 53296()).
Siroky alleges that the City retaliated against him by its attempt to collect a judgment for
attorneys’ fees shortly after Siroky had filed an unfair practice charge against the City. The

Board agent dismissed the charge on the basis that it did not state a prima facie case.

‘MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

After reviewing the entire file, including the charge and amended charge, the warning
and dismissal letters, and Siroky's appeal, the Board affirms the Board agent's dismissal
consistent with the discussion below.
DISCUSSION
The alleged violation, which occurred in 2002, involved the City's demand that Siroky
pay an attorney's fee judgment allegedly because he had filed an unfair practice charge against
the City a few months earlier. Under provisions of a July 1998 proposed settlement agreement
between Siroky, the City and other unnamed individuals, Siroky, inter alia, was to resign
effective September 1998 and to abandon his appeal of the court-ordered attorney fee award.
Siroky alleges that he fulfilled his obligations under the proposed agreement. However, Siroky
did not provide evidence that the settlement agreement was ever executed and that the City was
thereby barred from pursuing satisfaction of the attorney fee award.
Under MMBA section 350l(d), a "public employee" is defined as:
(d) 	'Public employee' means any person employed by any public
agency, including employees of the fire departments and fire
services of counties, cities, cities and counties, districts, and other
political subdivisions of the state, excepting those persons elected
by popular vote or appointed to office by the Governor of this
state. [Emphasis added.]
"Public agency" is defined in MMBA section 3501(c) as:
(c) Except as otherwise provided in this subdivision, 'public
agency' means every governmental subdivision, every district,
every public and quasi-public corporation, every public agency
and public service corporation and every town, city, county, city
and county and municipal corporation, whether incorporated or
not and whether chartered or not. As used in this chapter, 'public
agency' does not mean a school district or a county board of
education or a county superintendent of schools or a personnel
commission in a school district having a merit system as provided
in Chapter 5 (commencing with Section 45100) of Part 25 and
2

Chapter 4 (commencing with Section 88000) of Part 51 of the
Education Code or the State of California.
(Emphasis added.)
MMBA section 3506 prohibits:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502. [Emphasis added.]
In his appeal, Siroky asserts that he is an employee under the MMBA since he was
employed with the State of California in 2002 when the alleged protected activity and adverse
action occurred, and that he otherwise stated a prima facie case for retaliation by the City. 	But
he also acknowledges that he has not been employed with the City since 1998 and has provided
no evidence that he has performed services for the City since that time.2
Siroky focuses on whether he qualifies as a "public employee" under the MMBA. The
Board notes that: (1) Siroky was not employed by the City at the time the alleged unfair
practice occurred; and (2) any purported nexus between his allegations and his previous
employment relationship with the City appears too attenuated to qualify Siroky as a "public
employee" under MMBA sections 350l(c), (d) and 3506 for purposes of this charge. (See
Service Employees Internat. Union v. Superior Court (1982) 137 Cal.App.3d 320 [187
Cal.Rptr. 9]; see also, Monterey Peninsula Community College District (2002) PERB Decision
No. 1492; California School Employees Association & its Chapter 245 (Waymire) (2002)
PERB Decision No. 1493.)3 However, even were Siroky to qualify as a "public employee"
2The dismissal letter states that Siroky informed the Board agent of his employment
with the State of California during a July 30, 2002 telephone conversation.
3When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
3

with standing to file a charge under the MMBA, dismissal
of
his charge would be appropriate
because, as the Board agent correctly determined, he failed to state a prima facie case.
Accordingly, the Board affirms the dismissal
of
Siroky's unfair practice charge.
ORDER
The unfair practice charge in Case No. SA-CE-54-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this decision.
parallel or similar provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608
[116 Cal.Rptr. 507].)
4

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor	
C
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
03
I 18th Street
Sacramento,
CA
'.158
l-t-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
September 16, 2002
Mark Siroky
PO
Box 348511
Sacramento, CA 95834
Re: 	Mark Siroky
v.
City
of
Folsom
Unfair Practice Charge No. SA-CE-54-M
DISMISSAL LETTER
Dear Mr. Siroky:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 30, 2002. You allege that the City
of
Folsom violated the
Meyers-Milias-Brown Act (MMBA) 1 by retaliating against you for filing an unfair practice
charge with PERB.
I indicated to you in my attached letter dated July 29, 2002, that the above-referenced charge
did not state a prima facie case. 	You were advised that
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. 	You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to August
5,
2002 the charge would be dismissed.
Because you worked out
of
town for much
of
the month
of
August, you requested to amend
this charge during the first week in September. I agreed and received the amended charge on
September 10, 2002.
You allege that the City
of
Folsom retaliated against you for filing an unfair practice charge
with PERB in January
of
2002 (SA-CE-33-M). The alleged retaliation took place in April
2002 when the Northern California Selfinsurance Fund sent you a letter, listing the City
ofFolsom as the insured party. 	The letter requested payment
of
$18,8088.61 for the satisfaction
of
judgment for a 1998 court order for Defendant's Motion for Recovery
of
Attorney's Fees.
In the original charge I explained that based on the precedent
of
the Board, to establish a prima
facie case
of
discrimination in violation
of
Government Code section 3506 and PERB
Regulation 32603(a), the charging party must show that: 	(1) the employee exercised rights
under MMBA; (2) the employer had knowledge of the exercise of those rights; and (3) the
employer imposed or threatened to impose reprisals, discriminated or threatened to
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-54-M
September 16, 2002
Page 2
( . "· (
discriminate, or otherwise interfered with, restrained or coerced the employee because of the
exercise of those rights. (Campbell Municipal Employees Association v. City of Campbell
(1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Association v. City of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of
the following nexus factors should be present: (1) the employer's disparate treatment of the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro Police Officers Association, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
Police Officers Association, supra.); ( 4) the employer's cursory investigation of the employee's
misconduct; (5) the employer's failure to offer the employee justification at the time it took
action or the offering of exaggerated, vague, or ambiguous reasons; or (6) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles Countv
Employees Association v. County of Los Angeles (1985) 168 Cal.App.3d 683.).
In the letter of July 29, 2002, I explained to you that you do not meet the requisite criteria for
establishing a discrimination/retaliation violation of the MMBA. You did not establish that
you are an employee for the purposes of the MMBA; that the City's insurance company's
attempt to have you satisfy a four year old judgment was an adverse action; or that the City
attempted to collect the judgment from you because you filed the January 2002 charge with
PERB. In the amended charge, you addressed each of these factors by refuting my analysis.
You do not however, provide any additional facts.
Public Employee
Government Code section 3519(d) defines "public employee" as:
As used in this chapter:
(d) "Public employee" means any person employed by any public
agency, including employees of the fire departments and fire
services of counties, cities, cities and counties, districts, and other
political subdivisions of the state, excepting those persons elected
by popular vote or appointed to office by the Governor of this
state.
In the warning letter I explained that because you left your employment with the City of

SA-CE-54-M
September 16, 2002
Page 3
(
•
,r.
Folsom in 1998, you were not a public employee as defined above and thus did not have
standing to file this unfair practice charge with PERB.
In the amended charge you argue that because Government Code section 350l(d) does not
stipulate that an employee must continue to be employed with the same agency against whom
he or she has filed a charge, and because you are currently employed by
"a
large public
agency," you are a public employee as defined by that section
of
the Government Code.
During a phone conversation on July 30, 2002 you explained that you currently work for the
State
of
California. 	As an employee
of
the State
of
California, you may fall under the statutory
definition
of
"State employee" found in the Dills Act. 2 As such you would have standing to
file an unfair practice charge against the State
of
California as your current employer.
However, you have not been a "public employee" as defined by 350l(d) since 1998, and as
such do not have standing to file an unfair practice charge alleging that the City violated
of
the
MMBA by retaliating against you in 2002 long after your employment with the City ended.
Further,
as
stated in the July 29 letter, even
if
you were a "public employee" as defined by
Government Code section 3501(d), you have not established the requisite factors for a
retaliation violation
of
the MMBA.
Adverse Action
In the July 29 letter I explained that you had not established that the City's insurance
company's attempt to have you satisfy the judgment was an adverse action. In determining
2 Government Code 3513(c) provides:
(c) 	"State employee" means any civil service employee
of
the
state, and the teaching staff
of
schools under the jurisdiction
of
the State Department
of
Education or the Superintendent
of
Public Instruction, except managerial employees, confidential
employees, supervisory employees, employees
of
the
Department
of
Personnel Administration, professional employees
of
the Department
of
Finance engaged in technical or analytical
state budget preparation other than the auditing staff, professional
employees in the Personnel/Payroll Services Division
of
the
Controller's office engaged in technical or analytical duties in
support
of
the state's personnel and payroll systems other than the
training staff, employees of the Legislative Counsel Bureau,
employees
of
the Bureau of State Audits, employees of the office
of the Inspector General, employees of the board, conciliators
employed by the State Conciliation Service within the
Department of Industrial Relations, and intermittent athletic
inspectors who are employees of the State Athletic Commission.

•
J'.
SA-CE-54-M
September 16, 2002
Page 4
whether prima facie evidence
of
an adverse action is established, the Board uses an objective
test and will not rely upon the subjective reaction
of
the employee. (Newark Unified School
District (1991) PERB Decision No. 864.) In Newark the Board stated:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the circumstances would consider the
action to have an adverse action on the employee's employment.
In the July 29 letter, I explained that because you were no longer working for the City it is not
possible that a reasonable person under the circumstances would consider the City's actions
to
have an adverse action on your nonexistent employment. Further, even
if
you were an
employee
of
the City, you have a legal duty pursuant to the motion for Recovery
of
Attorney's
Fees to pay the $18,088.61 judgment. Despite all
of
your efforts, you and City have not
reached a final settlement pursuant to the 1998 agreement and thus your obligation to pay the
attorney's fees does not appear to have been discharged. As such, you can not argue that the
City's request for payment is an adverse act.
In the amended charge, you cite Government Code section 53298(a) and 53296(j) in support
of
your contention that PERB should use the concept
of
"reprisal action" rather than "adverse
action" when analyzing alleged violations
of
Government Code section 3506. Those two
sections
of
the Government Code fall under the heading Local Agencies, Disclosure
of
Information and are not within the scope
of
PERB's jurisdiction. As such, your reliance on
"reprisal action" is inapplicable to an allegation
of
discrimination or retaliation under the
MMBA.
Nexus
Finally, you have not established a nexus between the alleged adverse action and your filing
of
the SA-CE-33-M. Although you establish temporal proximity between the filing
of
the charge
in January 2002 and the request for the $18,000 April 2002, you have not established any other
nexus factor.
In the amended charge you assert that I stated on page 2
of
the July 29 letter that the City's
attorney Frank Gumpert told your attorney Hope Elders the following:
Mr. Gumpert presented to Ms. Elders that I had violated the
agreement by filing the PERB charge and as a result they were
now going to collect the money that they initially agreed to
waive.
This is not what Ms. Elders told me during our phone call of July 15, 2002. As I stated in the
July 29 letter:

SA-CE-54-M
September 16, 2002
Page 5
(
. ,,._
On July 15, 2002, I spoke with Ms. Elders. During that
conversation, Ms. Elders stated that during a phone conversation
with an attorney for the City of Folsom, Frank Gumpert, Mr.
Gumpert said that it was the City's position that you had
interfered with the City's attempts to settle the disputes between
the parties and therefore they were not going to pay you the
agreed upon $5,000. In addition, Mr. Gumpert told Ms. Elders
that you violated the agreement between the parties by filing
charges with PERB.
What Ms. Elders told me and what I conveyed to you in the July 29 letter was that the City
would not pay you the $5,000 in back wages agreed to during the 1998 settlement talks
because you interfered with the City's attempts to settle that dispute. There is nothing in my
letter, nor did Ms. Elders tell me that the City was attempting to collect the $18,000 judgement
because you filed an unfair practice charge with PERB.
In addition, you state in the amended charge that at some unidentified time, Mr. Gumpert told
Ms. Elders that the City is no longer interested in the agreement and will not mediate,
negotiate, or arbitrate the matter. It is your opinion that the City wants to force a lengthy and
expensive legal action in order to injure you financially. 	Even if Mr. Gumpert told Ms. Elders
that the City is no longer interested in the agreement of 1998, this comment fails to satisfy any
of the nexus factors listed above.
Therefore, because you have not established a prima facie discrimination/retaliation violation
of the MMBA, I am dismissing the charge based on the facts and reasons above, as well as
those contained in my July 29, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itsel(within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 l 001 et seq.

SA-CE-54-M
September 16, 2002
Page 6
(
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received
by
facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party
may
file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b ). )
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample fom1.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)

SA-CE-54-M
September 16, 2002
Page 7
Final Date
If
no appeal
is
filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By~~~
Marie A. Nakamura
Regional Attorney
Attachment
cc: David Devine

STATE OF CALIFORNIA 	GRAY DA VIS, Governor	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
July 29, 2002
Mark Siroky
PO Box 348511
Sacramento, CA 95834
Re: 	Mark Siroky v. City of Folsom
Unfair Practice Charge No. SA-CE-54-M
WARNING LETTER
Dear Mr. Siroky:
(
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 30, 2002. You allege that the City of Folsom violated the
Meyers-Milias-Brown Act (MMBA) 1 by retaliating against you for filing an unfair practice
charge with PERB.
In September 1990, you were hired as a Junior Engineer with the City of Folsom and were
represented by the International Union of Operating Engineers, Local 39.
In July 1996, IUOE filed several grievances on your behalf, one of which sought compensation
for your working out-of-class. In July 1998, the grievances were consolidated and brought
before an arbitrator. Prior to the arbitration hearing, the Union and the City negotiated a
settlement. 	You, as well as representatives of the City and IUOE, met with the arbitrator and a
court reporter. 	On the record the Union's attorney recited the terms of the settlement
agreement. All parties agreed on record to the terms of the settlement. As part of the
settlement the City agreed to pay you $5,000 for working out of class. Also, as part of the
settlement, you voluntarily resigned from your employment with the City, withdrew all
pending grievances and lawsuits and signed a written agreement.
Since July 1998, you have signed three settlement agreements, all of which comply with the
terms of the terms of the agreement of record. Most recently on September 5, 2001, you
signed an agreement drafted by the union which follows the language of the 1998 agreement
exactly. However, the City refuses to comply with all of these agreements and has not yet paid
you. 	Instead, the City drafted a different settlement agreement, which changed the terms of the
settlement.2
1 The MMBA is codified at Government Code section 3500 et seq. 	The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 These facts were contained in unfair practice charge SA-CE-33-M.

SA-CE-54-M
July 29, 2002
Page 2
(
The verbal settlement agreement
of
July 1998 provides in part on page
6:
In addition, Mr. Siroky, through counsel, will submit a voluntary
dismissal, with prejudice,
of
the judgment
of
attorney's fees and
costs that is presently on appeal.
The verbal settlement agreement
of
July 1998 states on page
7:
The City will prepare and file and serve a satisfaction
of
judgment on the outstanding attorney's fees and cost adjustments.
On January 25, 2002, you filed unfair practice charge SA-CE-33-M alleging that the City
refused to pay you the $5,000 under the settlement because
of
your exercise
of
protected
conduct. I dismissed the charge on May 8, 2002. You are appealing the dismissal
of
that
charge.
On April 15, 2002, the Northern California Cities Selfinsurance Fund sent you a letter. The
letter lists the insured party as the City
of
Folsom and states in part:
Enclosed3 is a copy
of
the Order RE: Defendant's Motion for
Recovery
of
Attorney Fees endorsed
by
the Deputy Clerk
of
the
State
of
California for the County
of
Sacramento in the amount
of
$18,8088.61.
Please submit your payment immediately for the full amount
of
$18,8088.61. Make your payment payable to the City
of
Folsom
and return it to me in the enclosed return envelope. (Emphasis in
original.)
In an effort to resolve your disputes with the City, you hired an attorney, Hope Elders. 	On July
15, 2002, I spoke with Ms. Elders. Dming that conversation, Ms. Elders stated that during a
phone conversation with an attorney for the City
of
Folsom, Frank Gumpert, Mr. Gumpert said
that it was the City's position that you had interfered with the City's attempts to settle the
disputes between the parties and therefore they were not going to pay you the agreed upon
$5,000. In addition, Mr. Gumpert told Ms. Elders that you violated the agreement between the
parties by filing charges with PERB.
Although you did not supply a copy of the Defendant's motion for Recovery
of
Attorney Fees, a copy of the motion was supplied by Respondent in SA-CE-33-M. The motion
states in part on page 2 at paragraph 2 that, "Defendants' Motion for Recovery of Attorneys'
Fees is GRANTED in the amount of$18,088.61 ... "

SA-CE-54-M
July 29, 2002
Page 3
Discussion
•
,r,
This charge as written fails to establish a prima facie violation
of
the MMBA.
To establish a prima facie case
of
discrimination in violation
of
Government Code section
3506 and PERB Regulation 32603(a), the charging party must show that: 	(1) the employee
exercised rights under MMBA; (2) the employer had knowledge
of
the exercise
of
those rights;
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because
of
the
exercise
of
those rights. (Campbell Municipal Employees Association
v.
City
of
Campbell
(1982)
131
Cal.App.3d 416 (Campbell); San Leandro Police Officers Association
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected·conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following nexus factors should be present: (1) the employer's disparate treatment
of
the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro Police Officers Association, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
Police Officers Association, supra.); ( 4) the employer's cursory investigation
of
the employee's
misconduct; (5) the employer's failure to offer the employee justification at the time it took
action or the offering
of
exaggerated, vague, or ambiguous reasons; or (6) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles County
Employees Association v. County
of
Los Angeles (1985) 168 Cal.App.3d 683.).
You do not meet the requisite criteria for establishing a discrimination/retaliation violation
of
theMMBA.
First, because you are not an employee for purposes
of
the MMBA, you cannot file charges
with PERB. Government Code section 350l(d) defines "public employee" as:
As used in this chapter:
(d) "Public employee" means any person employed by any public
agency, including employees
of
the fire departments and fire
services
of
counties, cities, cities and counties, districts, and other
political subdivisions of the state, excepting those persons elected
by popular vote or appointed to office by the Governor of this
state.
PERB Regulation 32602 provides:

SA-CE-54-M
July 29, 2002
Page 4
Alleged violations
of
MMBA or local rules, EERA, Ralph
C.
Dills Act or HEERA shall be processed as unfair practice charges
except as otherwise provided in these regulations. 	Such unfair
practice charges may be filed by an employee, employee
organization, or employer against an employee organization or
employer.
You must be an employee, employee organization, or an employer to file unfair practice
charges. 	You left employment with the City in 1998, nearly four years prior to the filing
of
this charge, and are thus not a "public employee" as defined above, and have no standing to
file unfair practice charges with PERB.4
Second, even
if
you were considered an employee for purposes
of
this charge, you establish
only some
of
the factors required to establish a retaliation violation
of
the MMBA. You
exercised rights guaranteed under the Act when you filed the charge SA-CE-33-M with PERB
in January 2002. The City as Respondent in that charge was aware
of
your protected conduct.
However, you have not established that the City's insurance company's attempt to have you
satisfy a four year old judgment was adverse action. In determining whether prima facie
evidence
of
an adverse action is established, the Board uses an objective test and will not rely
upon the subjective reaction
of
the employee. (Newark Unified School District (1991) PERB
Decision No. 864.) In Newark the Board stated:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the circumstances would consider the
action to have an adverse action on the employee's employment.
As stated above, you are not an employee under the MMBA and thus it is not possible that a
reasonable person under the circumstances would consider the City's actions to have an
adverse action on your employment.
It should also be noted that even
if
you were an employee
of
the City, you have a legal duty
pursuant to the motion for Recovery
of
Attorney's Fees to pay the $18,088.61 judgment. Since
you and City have not reached a final settlement pursuant to the 1998 agreement, your
obligation to pay the attorney's fees does not appear to have been discharged. As such, you
can not argue that the City's request for payment is an adverse act. 5
4 It should be noted that because the allegation in this charge differs from the
allegations contained in charge SA-CE-33-M, your status as an employee was not in question
in the other charge. In the other charge you alleged that you were being retaliated against for
exercising protected conduct (filing grievances) while an employee of the City.
5 For purposes of this letter I am assuming that Northern California Cities Self
Insurance Fund sent you the April 15, 2002 letter at the request of the City and that therefore
the actions of the Insurance Fund is attributable to the employer.

SA-CE-54-M
July 29, 2002
Page 5
(
1.
.r.	
•
Finally,
if
sending you the notice were an adverse action, you have not shown that the City
took this action "because
of'
your protected activity.
Although you establish temporal proximity between the filing
of
SA-CE-33-M and the letter
from the Northern California Cities
Self
Insurance Fund, you have not established any other
"nexus" factor listed above.
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original
proof
of
service must be filed with PERB.
	If
I do not receive an
amended charge
or
withdrawal from you before Monday, August 5, 2002, I shall dismiss your
charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
~~~-1-
Marie A. Nakamura
Regional Attorney
MAN