County of San Bernardino (Office of the Public Defender) (PERB 2423M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN BERNARDINO COUNTY PUBLIC
ATTORNEYS ASSOCIATION,
Charging Party,
v.
COUNTY OF SAN BERNARDINO (OFFICE OF
THE PUBLIC DEFENDER),
Respondent.
Case Nos. LA-CE-431-M
LA-CE-554-M
PERB Decision No. 2423-M
May 15, 2015
Appearances: Reich, Adell, Crost & Cvitan by Marianne Reinhold, Attorney, for
San Bernardino County Public Attorneys Association; Kenneth C. Hardy, Deputy County
Counsel, and Renne, Sloan, Holtzman & Sakai by Timothy Yeung, Attorney, for County of
San Bernardino (Office of the Public Defender).
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: These cases are before the Public Employment Relations Board
(PERB or Board) on exceptions from both the County of San Bernardino (Office of the Public
Defender) (Public Defender or County) and the San Bernardino County Public Attorneys
Association (Association) from proposed decisions by administrative law judges (ALJs) which
concern the Public Defender's implementation of a policy preventing the Association from
appointing deputy district attorneys (DDA) to represent deputy public defenders (DPD) in
employer-initiated investigatory meetings and other personnel matters.
Although these two cases, Case Nos. LA-CE-431-M and LA-CE-554-M, were litigated
as separate unfair practice cases and developed separate records, they are appropriate for joint

consideration because they involve the same parties and both cases sharemany common facts1
and interrelated legal issues.
The central controversy in these cases began in 2007 when the Public Defender refused
to permit a DDA to represent a DPD in an investigatory interview that was reasonably
perceived to potentially lead to discipline. The Association had designated the DDA in
question to represent the DPD. In the course of this refusal the Public Defender announced a
blanket policy prohibiting cross-representation of DPDs by DD As in employer-initiated
investigatory interviews. DPDs and DD As are in the same bargaining unit represented by the
Association. At the time in question, the Association had not designated any DPDs to
represent bargaining unit members in investigatory interviews.
The first unfair practice charge, Case No. LA-CE-431-M, was filed in December 2007
in response to the newly announced policy prohibiting cross-representation, among other
things. The complaint in Case No. LA-CE-431-M alleged that the policy violated the Meyers-
Milias Brown Act (MMBA)2 section 3503 and PERB Regulation 32603(b) 3 by denying the
Association its right to represent employees, and interfering with employees' right to be
represented by the Association, in violation ofMMBA section 3506 and PERB
Regulation 32603(a).4 The complaint also alleged that the Public Defender violated MMBA
1 At the unfair practice hearing in Case No. LA-CE-554-M, the parties jointly stipulated
to use evidence from the prior ALJ hearing for Case No. LA-CE-431-M.
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4 The MMBA section 3506.5 did not take effect until January 1, 2012, after the
complaints in both cases had been filed. 	PERB Regulation 32603 encompasses the provisions
ofMMBA section 3506.5.
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sections 3503, 3505, and 3506, as well as PERB Regulation 32603(a), (b), and (c), by refusing,
upon request by the Association, to produce the Public Defender's written policies regarding
discipline of employees in the Office of the Public Defender. No unilateral change was alleged
in this charge or complaint.
The complaint in Case No. LA-CE-431-M, was later amended at hearing to include an
allegation that the Public Defender violated MMBA sections 3503 and 3506, as well as PERB
Regulation 32603(a) and (b), by applying the policy to DPD Stephan Willms (Willms) when it
prohibited the Association-designated DDA from representing Willms at an investigatory
meeting upon Willms' request, and when it threatened Willms with discipline, including
tennination, ifhe failed to comply with the Public Defender's order to attend the investigatory
meeting. The Association alleged that the Public Defender's actions constituted retaliation and
discrimination by the Public Defender based on Willms' protected activity of requesting
representation at the investigatory meeting. 5
The second charge, Case No. LA-CE-554-M, was filed in February 2009, when the
Public Defender refused to permit the Association to represent DPD Mark Drew (Drew) in an
investigatory interview, and instead required Drew to attend the interview without DDA
representation under threat of discipline for insubordination. The unfair practice charge and
resulting complaint alleged that this conduct interfered with the Association's right to represent
employees and with the employees' right to be represented, and violated MMBA
sections 3502, 3503, and 3506, as well as PERB Regulation 32603(a) and (b).
This complaint also alleged that the Public Defender violated its duty to bargain in
good faith when it unilaterally implemented a new policy regarding confidential
5 Unlike in Case No. LA-CE-554-M, neither the complaint nor the proposed decision
for Case No. LA-CE-431-M alleged or found a violation of MMBA section 3502.
3

communications that had the effect of denying cross-representation in investigatory interviews
and other disciplinary proceedings, and violated MMBA sections 3503, 3505 and 3506, as well
as PERB Regulation 32603(a), (b) and (c).
These combined cases thus present four issues:
1. 	Does the Public Defender's 2007 blanket prohibition against any cross-
representation in investigatory interviews violate the MMBA by denying
employees the right to be represented by their chosen employee organization and
by denying the employee organization the right to represent its members?
2. 	Did the Public Defender violate the MMBA when it refused to permit cross-
representation in particular instances and required employees to appear at
investigatory interviews without the Association-designated representative under
threat of discipline for insubordination?
3. 	Did the Public Defender violate its duty to bargain in good faith in 2007 by
refusing to produce the Public Defender's written policy regarding discipline of
employees in the Office of the Public Defender upon request by the Association?
4. 	Did the Public Defender violate its duty to bargain in good faith in 2009 when it
unilaterally promulgated a new policy regarding confidential communications of
DPDs?
For reasons discussed more fully below, we conclude that the Public Defender's 2007
policy banning cross-representation interferes with the right of representation. In the unique
circumstances of this workplace, the Public Defender has demonstrated that its actions were
justified by business necessity and occasioned by circumstances beyond its control. However,
it failed to establish that it had no alternative course of action. Therefore, the Public
4

Defender's blanket policy violates MMBA sections 3503 and 3506, and PERB
Regulation 32603(a) and (b).
We further conclude that by requiring, under threat of discipline, that individual DPDs
appear at investigatory interviews without the Association-designated representative, the
Public Defender violated MMBA sections 3503 and 3506 (as well as section 3502 with regards
to Drew) and PERB Regulation 32603(a) and (b). As we explain below, when presented with
a legitimate request for representation in an investigatory interview, the Public Defender has
the option of foregoing the interview and proceeding with its investigation without the benefit
of interviewing the employee. What it may not do is threaten the employee with discipline if
he or she declines to be interviewed without the Association-designated representative.
We also conclude that the Public Defender breached its duty to bargain in good faith by
refusing to produce the Public Defender's written policy regarding discipline of employees in
the Office of the Public Defender upon request by the Association, thereby violating MMBA
sections 3503, 3505, and 3506, as well as PERB Regulation 32603(a), (b), and (c).
Finally, we determine that the Public Defender's unilateral adoption of the 2009 policy
prohibiting cross-representation in investigatory interviews and other disciplinary matters
violated its duty to bargain in good faith in violation ofMMBA sections 3503, 3505, and 3506,
as well as PERB Regulation 32603(a), (b), and (c).
PROCEDURAL BACKGROUND
Case No. LA-CE-431-M
In Case No. LA-CE-431-M, the Association's charge alleges that the Public Defender
violated sections 3503 and 3506 of the MMBA, as well as PERB Regulation 32603(a) and (b)
when, both as a blanket policy and in a specific instance involving DPD Lisa Berman
(Berman), the Public Defender prohibited DD As from representing DPDs in investigatory
5

interviews that could reasonably lead to discipline, and indicated that it would continue to
prohibit such cross-representation. The Association also alleged the Public Defender violated
its duty to bargain in good faith by refusing to provide the Association with its written
discipline policy applicable to DPDs.
The Office of the General Counsel issued a complaint on June 13, 2008, which alleged,
in relevant part:
4. On or about July 20, 2007, Respondent [the Office of the
Public Defender] ... , stated that unit members employed at the
Office of the Public Defender may not be represented during
investigatory interviews by employees of the Office of the
District Attorney.
5. By the acts and conduct described in paragraph 4, Respondent
denied Charging Party its right to represent employees in
violation of Government Code section 3503 and committed an
unfair practice under Government Code section 3509(b) and
PERB Regulation 32603(b ).
The complaint also alleged that the Public Defender's refusal to produce its policy
manual regarding discipline ofDPDs interfered with the Association's right to represent
bargaining unit employees under MMBA section 3503, constituted a failure to meet and confer
in good faith with the Association in violation of MMBA section 3505 and interfered with
employee rights in violation ofMMBA section 3506.
On the same day the complaint issued, the Office of the General Counsel dismissed that
portion of the unfair practice charge that alleged the Public Defender violated the MMBA by
refusing to allow a DDA to represent Berman in the investigatory interview. In its warning
letter, the Office of the General Counsel noted that when Berman requested representation by
the DDA, the Public Defender gave her three options: (1) proceed with the interview without
representation; (2) bring a representative who was not employed by the Office of the District
Attorney (DA)~ or (3) forgo the interview. No interview of Berman was held. Because the
6

options provided by the Public Defender conformed with PERB precedent and with National
Labor Relations Board v. J. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten), the warning
letter concluded that the charge failed to state a prima facie case for interference with respect
to Berman.
The Association was given an opportunity to amend its charge, and it did so to allege
that the Public Defender's actions were in retaliation for Berman requesting a representative.
The Office of the General Counsel rejected this theory of liability after concluding that the
Association was unable to establish that the Public Defender had an unlawful motive in
denying Berman's request. As the partial dismissal noted: "The County's blanket policy
[denying cross-representation] suggests that the County's actions were not in response to
Berman's specific request for deputy district attorney Laura Caldwell as a representative."
The Association did not appeal the partial dismissal. Therefore, the issue of whether
Berman was denied rights under the MMBA is not before us.
The complaint as amended6 involves two different types of challenges by the
Association: (1) afacial challenge to the County's blanket policy as interference with
protected activity (viz., requesting a union representative in investigatory interviews that could
reasonably lead to discipline); and (2) a challenge to the County's implementation of the
blanket policy with regard to DPD Willms.
The ALJ held a formal hearing on February 24 - 25, May 14, July 15 - 16, and
October 5 - 7, 2009.
On December 24, 2009, the case was submitted for decision. On December 22, 2010,
the parties jointly requested that the case be placed in abeyance pending settlement
6 Prior to the administrative hearing, the Association moved to amend the complaint to
include allegations concerning Willms. The motion was granted.
7

discussions. PERB issued a notice of abeyance the following day. Ultimately, the parties were
unsuccessful in reaching a settlement and filed a joint request to remove the case from
abeyance on March 23, 2011. The proposed decision issued in May 2012, to which both the
Public Defender and the Association excepted.
Case No. LA-CE-554-M
The complaint in this case alleges that on February 20, 2009, the County violated
sections 3502, 3503 and 3506 of the MMBA, as well as PERB Regulation 32603(a) and (b), by
denying to DPD Mark Drew (Drew) an Association-appointed union representative after Drew
requested representation in a meeting that he reasonably believed could lead to discipline, and
by threatening Drew with discipline for insubordination should he refuse to appear at the
meeting. The complaint also alleged that this conduct denied the Association's right to
represent Drew in violation ofMMBA sections 3503, 3506 and PERB Regulation 32603(b).
The complaint also alleges that the County violated MMBA sections 3503, 3505 and
3506, and PERB Regulation 32603(a), (b), and (c), by unilaterally changing the policy
concerning the right of the Association to designate representatives to represent employees in
investigatory disciplinary interviews and grievance processing as set forth in the parties'
memorandum of understanding (MOU). The new policy, as alleged, decreed that employees of
the Public Defender could no longer be represented during investigatory interviews or in other
personnel matters by employees of the DA or by outside legal counsel of the Association.
On August 29, 2009, the County filed an answer denying the substantive allegations
and asserting multiple affirmative defenses. An informal settlement conference was held on
October 24, 2011, but the matter was not resolved.
On April 24, 2012, the County filed a motion to dismiss the PERB complaint for lack of
jurisdiction. That motion was taken under submission.
8

The ALJ held a formal hearing on June 19, 2012. On January 24, 2013, the case was
transferred to a second ALJ for decision due to the first ALJ's retirement. The second ALJ
issued his proposed decision on March 27, 2013. The Public Defender excepted to this
proposed decision.
The County's request for oral argument was granted by the Board and argument was
heard on October 30, 2014, by the three~member panel of the Board designated to decide these
cases.
FACTUAL SUMMARY COMMON TO BOTH CASES
The bargaining unit represented by the Association includes both DDAs and DPDs in
the County, amongst other classifications.
The first MOU relevant to these cases was effective from June 25, 2005 until June 20,
2008. The MOU included the following provisions, in relevant part, which unequivocally
affirm the Association's right to designate its own representative to process grievances, to
represent employees during disciplinary proceedings, and to access employee personnel
records when authorized by the employee.
ACCESS TO PERSONNEL RECORDS
... Employees currently employed by the County of
San Bernardino, and/or their representatives, designated by the
employee in writing, will be allowed to review the employee's
personnel records during regular business hours.
Section 1 - Authorized Employee Representatives
[The Association] may designate employees as authorized
employee representatives or alternates to represent employees in
the processing of grievances or during disciplinary proceedings
subject to the following rules and procedures:
9

(a) 	[The Association] may designate one ( 1) authorized
employee representative for each geographic region/division
for which the District Attorney, Child Support Services and
Public Defender maintain a work force, as provided in [the
Association's] by-laws. 	[The Association] shall be entitled
to designate two (2) alternates for each authorized employee
representative; ...
Section 2 - Handling of Grievances and Disciplinary Proceedings
(a) 	At the request of an employee, an authorized employee
representative or alternate, or [Association] labor relations
representative, may investigate a formal grievance and
represent the employee at the resulting proceedings or
represent the employee during disciplinary proceedings ....
[fl
( c) 	Employees must use the authorized employee representative
or alternate assigned to their geographic location and
representation unit, except as otherwise provided herein.
(Emphasis added.)
The MOU includes a "zipper clause" specifying that the MOU provisions "constitute
the complete and total contract between the County and [Association] with respect to wages,
hours, and other terms and conditions of employment" and that each party "voluntarily waives
the right to meet and confer in good faith with respect to any subject or matter referred to or
covered in this Agreement." (MOU, pp. 26-27.)
While the charges in these cases were pending, the County and the Association
negotiated a successor MOU with an effective term of June 21, 2008 until June 17, 2011. The
provisions quoted above were agreed to in the successor MOU and remained substantially
identical for all relevant purposes.

At the time of the events in question and when the charges were filed, the Association's
"Authorized Employee Representatives" (as defined supra) consisted entirely ofDDAs, and no
deputy DPDs served as labor representatives.7
In July 2007, while attempting to provide representation to DPD Berman for an
investigatory interview, the Association learned that the County's Public Defender,
Doreen Boxer (Boxer), intended to implement a blanket policy disallowing a union
representative to be present at any disciplinary interview if the union representative is
employed by the Office of the DA.
Lead ODA and Association President Grover Merritt (Merritt) testified that the
Association has a senior authorized labor representative who initially handles all labor,
grievance, and discipline matters, and who sits on the Association's executive board.8 The
position, created in Fall of 2007, was held by DOA Sharon Caldwell (Caldwell) at the time of
the hearings on both cases
DPD Susan Israel served on the Association's executive board and had served as a
labor representative. However, she resigned from her position as labor representative in
January 2007 after serving less than a year, because she felt untrained in labor law and
believed that she could not sufficiently represent the DPDs' interests.
7 The parties alleged conflicting reasons for why this is the case. However, we need not
resolve this dispute in order to reach our holdings in either case.
8 All board members are elected. However, according to Merritt, the labor
representative is appointed by the president, subject to veto by the executive board.
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FACTUAL SUMMARY OF CASE NO. LA-CE-431-M
Implementation of Blanket Policy Prohibiting Cross-Representation
Sometime in July 2007, Boxer requested that DPD Berman attend an investigatory
interview with the Public Defender's office on or about July 20, 2007. The Public Defender
was investigating various instances of misconduct Berman was alleged to have engaged in.
When Berman appeared at the investigatory interview on July 20, 2007, accompanied by DDA
Caldwell as her Association representative, Assistant Public Defender Lauri Ferguson
(Ferguson) refused to allow Caldwell to attend the investigatory interview and refused to
proceed with the interview if Bemian insisted on Caldwell's presence. Ferguson explained that
the interview involved matters that were "confidential," and that by having Caldwell, a
member of the DA's office, present, Berman would be waiving the attorney-client privilege
and work product privilege on behalf of the Public Defender, neither of which the Public
Defender was willing to waive.
Caldwell objected to Ferguson's denial ofrepresentation at this meeting and informed
her that no labor representatives from the Public Defender's office were available. Caldwell
also stated that the Association would not hire outside representation for Berman because
Caldwell was able to adequately represent Berman. Moreover, Caldwell noted that outside
representation would pose the same alleged problems involving the disclosure of attorney-
client communications and attorney work product.
Berman ultimately chose not to be interviewed without her representative, and the
County did not insist on an interview or threaten Berman with discipline for refusing to be
interviewed. As noted above, the unfair practice charge alleging that Berman was denied
representation rights was dismissed. We recount the facts regarding Berman only for purposes
of providing factual context to the Public Defender's subsequent actions.
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DPD Willms
In or around January 2009, the Public Defender requested that DPD Willms attend an
investigatory interview with the Public Defender's office. He was not informed at this time of
what the interview would be about. Willms requested an Association representative, and
Merritt told Boxer that it would send DDA Caldwell as Willms' authorized representative.
Boxer refused to permit Caldwell or any other DDA to represent Willms at the
investigative interview, but offered to postpone the meeting in order for Willms to find a
representative outside of the DA's office. By e-mail message of January 7, 2009, Boxer gave
further instruction:
If I do not receive a request to postpone the meeting ... , the
meeting will proceed tomorrow, January 8th at 1:30 ... , and as
such Mr. Willms is ordered to be present at that time and place.
Violation of this order can result in discipline up to and including
termination.
(Emphasis added.)
Willms responded with a request to postpone the meeting but reiterated his request for
representation at the meeting. Boxer agreed to postpone the meeting until January 29, 2009,
but ordered Willms to appear at the meeting on that date. 	She reiterated to Willms that no
DDA would be permitted to attend the meeting, and stated that the meeting would take place
whether or not the PERB charge for Case No. LA-CE-431-M had been resolved by that date.
This was the second time Boxer informed Willms that no DDA would be permitted to
represent him at the investigatory meeting.
On January 28, 2009, Boxer wrote to Merritt explaining the reason for the meeting with
Willms. 	She wanted Willms' Manager, ChiefDPD John Zitny (Zitny), to speak with Willms
about how Willms interacted with other counsel, and how thismay affect Willms' handling of
three death penalty cases. Boxer stated that her office needed to review Willms' caseload with
13

him and discuss detailed information about death penalty cases, including one case in
particular that might be reassigned. Boxer further represented that other than the question of
Willms' interaction with other counsel, she had no information that Willms mishandled cases,
but that in order to ensure proper representation to criminal defendants in sensitive death
penalty cases, she needed Zitny to have the conversation with Willms.
Boxer testified that in one of the three cases, Caldwell was the DDA assigned as
prosecuting attorney against Willms' client. According to Boxer, the discussion of Willms'
handling of these cases would include witnesses, tactics and strategies he used or intended to
use. In another case, Association President Merritt was the prosecuting DDA. In the third
case, DDA Douglas Poston was the prosecuting DDA. He was also a possible labor
representative, according to Boxer.
Merritt replied, acknowledging that management had the prerogative regarding
caseloads in the homicide defense unit (HDU) (where Willms was assigned) and how HDU
employees work together. Merritt concluded, "We would not presume to assert a union
interest in [discussion of Willms' caseload.]" (Joint Exhibit AA.) The next morning, Willms
e-mailed Boxer withdrawing his request for representation "[i]f this meeting is just between
Mr. Zitny and myself." The meeting between Zitny and Willms proceeded on that basis,
without representation and without objection by Willms or the Association.
Refusal to Provide Information
Prior to August 5, 2007, the Association had made at least one request to the Public
Defender for a copy of the Public Defender's policy manual with respect to discipline of
attorneys, on the grounds that the policy manual was relevant and necessary to the
Association's representation of DPDs in their employment relationship with the Office of the
14

Public Defender. The record does not indicate the date of the requests made prior to August 5,
2007.
Merritt wrote a letter to Boxer, dated August 5, 2007, in which he stated,.in relevant
part:
Ferguson has refused to supply [the Association] with a copy of
your office's policy manual, that is, the pertinent portions that
relate to discipline. At the time of this writing, we still do not
have a copy of your office rules of conduct which purportedly
can be used to impose punishment. After so refusing,
Ms. Ferguson has used that same policy to form the basis of at
least one letter of reprimand ....
(Joint Exhibit H, emphasis in original.)
In a letter from Boxer to Merritt dated August 13, 2007, (Joint Exhibit I) Boxer made
no mention of the requested policy manual. Boxer indicated to Merritt on subsequent
occasions that the Office of the Public Defender's policy for disciplining employees was
located in "Rule Ten" of the County's policy manual, but that the Public Defender's policy
manual had no policy for disciplining employees.
When asked by the County's counsel if the Association had demanded or requested a
manual that was the Public Defender manual for discipline of public defenders, Boxer
responded:
Yes. Yes, they did ask for it, and we didn't give them anything
because it's available publically to Mr. Merritt and his people ...
on the internet. County Line has it.
(Reporter's Transcript, Vol. IV, pp. 131:27-132:16.)
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FACTUAL SUMMARY OF CASE NO. LA-CE-554-M
The Public Defender's Investigatory Meeting With Mark Drew
In late January or early February 2009, the Public Defender requested that DPD Drew
attend a disciplinary interview on or about February 13, 2009. The Public Defender's office
did not inform either Drew or the Association of any allegations against Drew prior to this
interview. 	Drew's supervisor had previously informed Drew of some concerns about his work
performance, including maintenance of case files.
On February 12, 2009, Merritt e-mailed Ferguson and Boxer that the Association was
assigning Caldwell to represent Drew at the interview, for which Merritt requested a
postponement. Boxer replied on February 13, 2009, granting the postponement, but objecting
to a DDA serving as Drew's representative because "during the interview with Mr. Drew, our
office will be discussing confidential matters relating to Public Defender cases." Boxer stated
that it would be "inappropriate and unethical" for Association members to discuss the issues
raised in the interview with any DDA. At the time, Drew and Caldwell were opposing counsel
in a criminal matter set for trial. The meeting was rescheduled for February 20, 2009.
On the afternoon of Friday, February 20, 2009, Drew and the Association's Counsel,
Marianne Reinhold (Reinhold), appeared for the interview. Before any questions were asked
of Drew, Ferguson quizzed Reinhold on her fiduciary obligations to Drew and to the
Association. Reinhold confirmed that she was counsel to the Association and was at the
meeting at its request to represent its member. Ferguson then asserted that under Business and
Professions Code section 6068, Reinhold was required to maintain Drew's confidences
inviolate, which meant that she could not discuss with the Association what was discussed in
the meeting, share documents, or divulge any other confidential information without a waiver
from Drew, the Public Defender and the Public Defender's clients whose cases may be
16

discussed at the meeting. Reinhold replied that she did not envision discussing Public
Defender clients with the Association, but she had a duty to her client, the Association, to
inform it of her assessment of any disciplinary action taken against Drew as a result of the
investigation.
Reinhold repeatedly answered Ferguson's request that Reinhold declare that there was
no conflict of interest between Drew and the Association by informing Ferguson that there was
none that she could envision. Ferguson further insisted as a condition to permitting Reinhold
to represent Drew that Reinhold agree that she would not discuss with the Association client
files, work product, work processes of the Public Defender's office, or "anything that is
discussed that has to do with the internal operations of the Public Defender's Office, anything
that has to do with any clients." (Joint Exhibit 4, p. 4.) With that clarification, Reinhold
replied that while she had no plan to reveal to the Association confidential Public Defender
client information, she "could envision a circumstance where because of my obligations to
them I have to give them advice about issues, and that could resultin me needing to discuss
with them ... issues that were discussed today, not what was in a particular file that Mr. Drew
was handling. But when you talk about questions like process, ... I don't include that in work
product." (Id. at p. 4-5.)
In the name of protecting clients of the Public Defender and the integrity of the
department, Ferguson refused to permit Reinhold to attend the disciplinary interview.
Ferguson infonned Drew that if he did not attend a disciplinary interview with Ferguson within
approximately an hour without Reinhold, Drew would face discipline for insubordination.
Drew returned later in the afternoon for the interview with Ferguson without any
Association representative. He made two statements about the events of earlier that day:
(1) that he felt that he had no choice but to proceed with the interview without representation
17

because he was unable to find a private attorney given the time and cost constraints, and
because he did not want to be found insubordinate; and (2) that he was not interested in being a
part of the larger conflict between the Association and the County over the issue of
representation. Drew said he wanted to address Ferguson's issues and go back to doing his job
as a DPD.
Ferguson provided Drew with additional time to find a fellow DPD to represent him
during the interview. The meeting adjourned briefly, but Drew was unable to find a DPD to
represent him. At the time, the Association had not designated any DPDs as its representatives
under the MOU. The meeting between Ferguson and Drew proceeded without Association
representation.
Ferguson questioned Drew over a variety of subjects, including whether Drew ever
discussed with Merritt, Caldwell, or Reinhold any specific confidential information relating to
cases assigned to him or anything relating to the confidential work product or other
confidential information of the Public Defender's office. She also questioned him about his
work performance, specifically his alleged failure to annotate or otherwise document his work
in his case files and the need to complete such annotations. These issues had been documented
in one of Drew's prior performance evaluations.
There was little discussion of Drew's actual work on any case assigned to him, but
Ferguson questioned him about his failure to appear in court on time. At the meeting's
conclusion, Ferguson assured Drew that, because he appeared for the interview, he would not
be considered insubordinate.
Confidential Information Policy And Potential Conflict Policy
On March 11, 2009, Boxer sent a letter to Merritt about the parties' "dispute over
whether the Association has the right to appoint Deputy District Attorneys to represent Deputy
18

Public Defenders in personnel matters." (Joint Exhibit 6.) She reiterated her concerns about
the disclosure of confidential client and work product information and what she described as
"an inherent conflict of interest." Boxer included drafts of two new policies: "Confidential
Information in Attorney Personnel Actions" (Confidential Information Policy) and "Potential
Conflict Situations Due To Defined Relationships" (Potential Conflict Policy) and invited the
Association to "meet to discuss" the drafts and other issues regarding the parties' dispute. The
parties met on March 19, 2009, but did not resolve their dispute.
On March 24, 2009, Boxer sent a memorandum entitled "Duty of Confidentiality" to all
attorneys in the Public Defender's office. Attached were the two policies referred to in
Boxer's March 11, 2009, letter to Merritt, although the final Confidential Information Policy
differed slightly from the March 11, 2009 version.
The final version of the Confidential Information Policy goes beyond the previous
unwritten policy banning cross-representation in investigatory interviews. The new policy
precludes attorneys in the Public Defender's office from disclosing information to anyone
outside the office without ·written consent of the Public Defender, except when it is necessary
to do so in personnel matters, and in those cases, the DPD may only disclose confidential
information to a designated representative if that representative is: (1) another DPD that is a
designated Association representative without any conflicts of interest and who agrees not to
disclose any confidential information outside of the Public Defender's office; or (2) to a
privately hired attorney that has no conflicting interests and who agrees not to share
confidential information with the Association or any other entity.
The final version of the Potential Conflict Policy states, in relevant part, that "It is the
opinion of this office that the representation of any Public Defender attorney by a member of
the District Attorney's Office in a personnel matter creates a conflict of interest under current
19

law and ethics rules." The policy further directs that public defenders shall not be represented
in a personnel matter where it is reasonably foreseeable that such representation may create a
conflict of interest or create the appearance of conflict or result in the disclosure of confidential
information. (Joint Exhibit 7.)
Read together, these policies prohibit cross-representation in any personnel matter and
prohibit even outside counsel from representing DPDs unless that attorney agrees not to share
confidential information with the Association. Additionally, the Confidential Information
Policy prohibits non-attorneys from representing DPDs.9
This policy thus broadens the class of personnel actions for which cross-representation
will be prohibited beyond the blanket policy (which solely covered investigatory interviews) to
encompass other disciplinary actions, such as Skelly hearings, disciplinary arbitrations or civil
service hearings. 10
The Association was not provided with copies of the final versions of these policies,
and the Association did not agree to these policies at any time relevant to these cases.
PROPOSED DECISIONS
Case No. LA-CE-431-M
After reviewing the holding of Weingarten, supra, 420 U.S. 251, establishing the right
of employees to representation during disciplinary interviews, and Rio Hondo Community
College District (1982) PERB Decision No. 260 (Rio Hondo), in which PERB adopted
9 "Confidential information," according to the policy, includes client secrets that DPDs
come to possess from any source, as well as information that might cause public
embarrassment to the client, or disclosures that could reasonably lead to the discovery of such
information by a third party.
10 The term "Skelly hearing" refers to a pre-disciplinary hearing that complies with due
process requirements set forth in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
Association Counsel Reinhold represented Berman in a Skelly hearing.
20

Weingarten, the ALJ concluded that the Public Defender's policy denying cross-representation
in all situations would "prevent the bargaining unit from functioning altogether. The
Association could never represent DPDs, because the Association includes DDAs." (Proposed
Dec., p. 6.) The ALJ considered the Public Defender-'s argument that its policy was necessary
because of what the Public Defender described as an inherent conflict of interest between
DPDs and DD As, which the Public Defender argues can only be managed by a blanket policy
against DDAs representing DPDs. He also considered the Association's argument that the
issue can be managed by the DDA simply recusing himself or herself from handling or
discussing any criminal case involving a representation matter.
The ALJ rejected both arguments, concluding that in order for the Association and the
Public Defender to do their respective jobs, the Public Defender must allow DD As to represent
DPDs, except where an investigatory interview is inseparable from the review of case files
containing client communications and attorney work product. To the extent there are issues
that are not separable from client communications, attorney work product and other case file
issues, the ALJ concluded that the Public Defender should give the Association a written
explanation of why this is so in the particular case and then offer to discuss that explanation
with the Association. If, after any discussion with the Association, the Public Defender
determines in good faith that certain issues are inseparable from case file issues, the ALJ
concluded that the Public Defender may prevent DDAs from representing DPDs as to those
issues.
With respect to the Berman matter, the ALJ concluded that the conduct she was
accused of was "separable from client communications, attorney work product, and other
casefile issues." (Proposed Dec., p. 7.) Therefore, according to the ALJ, the County should
21

have allowed Caldwell to represent Berman as to those non-case file issues, and its refusal to
do so violated the MMBA. 11
On the issue of retaliation against Willms, the ALJ noted that to demonstrate employer
discrimination or retaliation against an employee in violation of MMBA section 3506, the
charging party must show that: (1) the employee exercised rights under the MMBA; (2) the
employer had knowledge of the exercise of those rights; (3) the employer took adverse action
against the employee; and (4) the employer took action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210.)
The ALJ concluded that since Willms chose a representative who was both reasonably
available and physically able to represent him, Willms' choice was protected conduct. Boxer's
threat to terminate Willms was adverse action that grew directly out of Willms' protected act
of choosing a representative, and thus violated the MMBA.
With respect to the Association's request for the County's policy manual regarding
discipline ofDPDs, the ALJ determined that the County's failure to provide the requested
information violated the MMBA.
Case No. LA-CE-554-M
PERB's Jurisdiction
As an initial matter, the Public Defender argued that PERB does not have jurisdiction to
resolve alleged violations of the MMBA if those claims implicate attorneys' professional
11 As noted earlier, the allegation that the Public Defender violated the MMBA by
denying Berman the right to be represented in an investigatory interview was not before the
ALJ. The proposed remedy did not specifically order the Public Defender to make her whole
by offering a new interview, or any other remedy. Because the ALJ did not have jurisdiction
to consider a matter previously dismissed, we construe his discussion of Berman to be for the
purposes of placing the Public Defender's denial ofrepresentation to her in the context of its
blanket policy. In light of this procedural posture, we do not affirm or adopt his statement that
the Public Defender should have allowed Caldwell to represent Bennan.
22

responsibilities. 	Only the courts can police attorneys' ethical conduct and any remedy PERB
might impose would be an unconstitutional regulation of the practice oflaw, according to the
Public Defender.
Relying on City of San Jose v. Operating Engineers Local Union No. 3 (2010)
49 Cal.4th 597 (San Jose), the ALJ determined that the allegations in the PERB complaint-
that the Public Defender unlawfully denied representation rights and unilaterally changed
existing policy within the scope of representation-would, if proven, violate the MMBA.
Because the alleged conduct is arguably prohibited by the MMBA, PERB has initial exclusive
jurisdiction under San Jose. 	The ALJ rejected the Public Defender's assertion that a PERB
decision would amount to an unauthorized regulation of the practice of law, concluding the
Public Defender had not shown that a cease-and-desist order would cause attorney unit
members to compromise client representation.
Representation Rights
Based on Weingarten, supra, 420 U.S. 251 and Rio Hondo, supra, PERB Decision
No. 260, the ALJ found that all of the elements of a Weingarten/Rio Hondo violation were met
in this case: Drew requested Association representation for an investigatory interview; he
reasonably believed that discipline could result from the meeting; and the Public Defender
denied Drew's request to be represented by Reinhold.
Citing San Bernardino City Unified School District (1998) PERB Decision No. 1270
(San Bernardino), the ALJ noted that once an employee asks for representation at an
investigatory meeting, the employer has three options: it may grant the request for
representation; it may discontinue the interview and investigate through other means; or it may
inform the employee that he or she has the option of continuing with the interview without
representation or declining the interview.
23

Once Drew confirmed that he could not secure Association representation, other than
Reinhold, the County did not exercise any of the legally permissible options under
San Bernardino, supra, PERB Decision No. 1270. Instead, it insisted on conducting the
interview with Drew whether he was represented or not, ordering him to participate
unrepresented under threat of discipline. The ALJ concluded that this conduct interfered with
Drew's right to representation and with the Association's right to represent its members.
Having concluded that protected rights were harmed, the ALJ then shifted the burden of
producing evidence to the Public Defender to justify its conduct under Stanislaus Consolidated
Fire Protection District (2012) PERB Decision No. 2231-M (Stanislaus), citing Public
Employees Assn. v. Board of Supervisors (1985) 167 CaLApp.3d 797 (Tulare). 	Under these
precedents, if the employer's conduct is inherently destructive ofMMBA-protected rights, the
employer's conduct will be excused only if it can show that it was occasioned by
circumstances beyond its control and that it had no alternative course of action. (State of
California (Department of Personnel Administration) (2011) PERB Decision No. 2106a-S,
p. 11 (DPA), citing Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad), pp. 10-11.)
The ALJ concluded that Ferguson's insistence that Drew could only be represented by a
fellow DPD, even though none were available, was a total denial of the right to be represented
by the Association. The ALJ found this conduct to be "inherently destructive" of MMBA-
protected rights. In the ALJ's view, the Public Defender's decision to conduct an investigation
was prompted by something beyond its control, i.e., Drew's work performance issues. The
ALJ then assessed whether the Public Defender had any alternative to denying these protected
rights.
24

Based on the transcript of the interview between Drew and Ferguson, the ALJ
determined that the primary purpose of the interview was to discuss Drew's work performance,
e.g., his alleged failure to properly document his work and his late court appearances. No
specific details of any cases handled by the Public Defender were discussed. Therefore, the
ALJ concluded that no confidential information was disclosed in the interview, and no
confidential attorney work product was discussed during the interview.
Neither did the Drew interview include a discussion of the Public Defender's work
product in the context of a criminal proceeding, according to the ALJ. He rejected the Public
Defender's claim that "work product" includes procedures for documenting attorney work, as
such documentation was not shown to constitute impressions, conclusions, opinions, research
or theories of the DPD. 12
Even if confidential client information or attorney work product had been a subject of
Drew's interview, the ALJ concluded that the Public Defender'had other alternatives to a
complete denial of his right to representation. For example, the Public Defender could have
canceled the interview or given Drew the option of foregoing the interview, or given him the
choice (as opposed to the command) of proceeding with the interview without a representative.
If there was the possibility of confidential client information being revealed, Drew could have
sought the informed consent of his clients, according to the ALJ. 	Or the Public Defender could
have excluded confidential information from the discussion.
For these reasons, the ALJ concluded that the Public Defender failed to prove that it
had no other option than to deny Drew his right to Association representation. This denial
interfered with Drew's right to be represented and with the Association's right to represent.
12 Penal Code section 1054.6 (citing to California Code of Civil Procedure,§ 2018.030)
defines the scope of attorney "work product" in a criminal proceeding as any "writing that
reflects an attorney's impressions, conclusions, opinions, or legal research or theories."
25

The Public Defender's insistence that Drew participate in the interview under threat of
insubordination also interfered with Drew's right to be represented.
Unilateral Change In Policy Concerning Representation
With regard to the charge of unilateral change, the ALJ cited to Oakland Unified School
District (2005) PERB Decision No. 1770 (Oaklana), in which PERB held that "[t]he zipper
clause in a contract generally precludes unilateral changes in any negotiable topics during the
life of the agreement." (Id. at pp. 7-8.) In that case, PERB found that a union was free to use a
negotiated zipper clause as a "shield" to resist unilateral policy changes during the life of the
agreement. (Id. at Proposed Dec., p. 47.)
The ALJ found that the Public Defender provided notice that it was considering
adopting the Confidential Information Policy and the Potential Conflict Policy and offered to
meet prior "to discuss" final implementation. Under the circumstances of this case, however,
the Association was under no obligation to request bargaining over the proposed changes
because the parties' MOU contains a "FULL UNDERSTANDING, MODIFICATION AND
WAIVER", or "zipper" clause, whereby "the County and [the Association] for the life of this
Agreement, each voluntarily waives the right to meet and confer in good faith with respect to
any subject or matter referred to or covered in this Agreement." The MOU provided the
Association the right to designate authorized representatives to represent employees in
grievances and disciplinary proceedings and gave those representative access to employee
personnel records. The ALJ found that the Association was therefore under no obligation to
negotiate over issues already covered by the MOU, and the Public Defender was not free to
unilaterally change the policies contained in the MOU and that were within the scope of
representation and not within a managerial prerogative.
26

According to the ALJ, the Public Defender's policy actually prevents all current
Association representatives from representing DPDs in disciplinary proceedings, because there
were no DPDs appointed as labor representatives, a fact of which the Public Defender was well
aware at the time it implemented the policy.13 The ALJ concluded that the policy significantly
and adversely affects Association members' working conditions, because DPDs must face the
. possibility of discipline without any Association representation.
According to the ALJ, the mere fact that the Public Defender's office has ethical
obligations to its clients does not override the Public Defender's obligations under the MMBA.
Moreover, the Public Defender's position that it needs operational discretion free from
collective bargaining is undermined by the fact that it has already negotiatea with the
Association over this very issue and memorialized those negotiations in the "AUTHORIZED
EMPLOYEE REPRESENTATIVES" clause of the MOU. The ALJ found no evidence that
these negotiations adversely affected the Public Defender's operations. Accordingly, the ALJ
concluded that the strong interests in protecting employee rights and bargaining over issues
traditionally considered to be within the scope of representation outweigh the Public
Defender's need for unrestricted decision-making authority.
The ALJ ordered the Public Defender to rescind the March 24, 2009, Confidential
Information Policy and to cease and desist from denying members the right to be represented
in investigatory meetings.
13 According to the ALJ, the policy relevant to this case was the "Confidential
Information in Attorney Personnel Actions." However, the second policy, "Potential Conflict
Policy," also declares that representation of a public defender by a DDA in a personnel matter
constitutes a conflict of interest. We therefore consider both policies at issue here.
27

POSITIONS OF THE PARTIES
Both parties excepted from the proposed decision in Case No. LA-CE-431-M, and the
Public Defender excepted from the proposed decision in Case No. LA-CE-554-M. We
summarize their arguments below.
Case No.LA-CE-431-M
The Public Defender's Exceptions
The Public Defender disputes PERB's jurisdiction to resolve this dispute, claiming that
the exercise of such jurisdiction would result in PERB regulating the practice of law by DD As
and DPDs, and would interfere with the discretionary authority, independence and ethical
duties of the Public Defender and the DA. Constitutional rights of criminal defendants are also
necessarily implicated by PERB's exercise of jurisdiction in this case, according to the Public
Defender. Because these issues are outside of PERB's jurisdiction, the Public Defender urges
the complaints against it should be dismissed.
The Public Defender asserts that the ALJ failed to make numerous findings: 	e.g., that
DDA representation of DPDs in any investigative or disciplinary proceeding will chill the
attorney-client relationships maintained by the Public Defender and undermine the trust of its
clients, undermine the DA's relationships with law enforcement, victims and the public, and
adversely affect the defense and prosecution functions. The Public Defender also objects to
the ALJ's alleged failure to consider the dominance ofDDAs in the Association.
According to the Public Defender, the ALJ ignored the risks created by the disclosure
of confidential Public Defender case file information to DDA-representatives and the conflicts
of interest and ethical violations that cross-representation would create. In the view of the
Public Defender, ordering cross-representation interferes with the independence of the Public
Defender and with the discretionary authority of the DA.
28

The Public Defender also excepted to the ALJ' s failure to discuss the "legitimate
business reasons" test for interference with protected rights, as articulated in Tulare, supra,
167 Cal.App.3d 797, his failure to cite to authority for the proposition that recusal by a DDA
who has represented a DPD will resolve the ethical dilemmas arising from such representation,
and his failure to sufficiently consider the decisions in Upland Police Officers Assn. v. City of
Upland (2003) 111 Cal.App.4th 1294 (Upland); and Association for Los Angeles Deputy
Sheriffs v. County ofLos Angeles (2008) 166 Cal.App.4th 1625 (ALADS).
The Public Defender also excepted to the ALJ's protocol for determining the conditions
under which cross-representation could occur. In the Public Defender's view, its blanket rule
prohibiting DDAs from representing DPDs in investigatory interviews is required to assure not
only the confidentiality of criminal defense clients, but to assure the proper functioning of the
criminal justice system in the County. The Public Defender's arguments will be examined in
greater detail below, but its main contention is that permitting DDAs to represent DPDs in
investigatory hearings poses too great a risk that confidential client information or work
product information will be revealed to the DA's office. Even aside from these risks, the
Public Defender asserts that permitting DDAs to represent DPDs will undermine the frail trust
the Public Defender must establish with its clients.
With respect to the Willms matter, the Public Defender excepted to the ALJ's
conclusion that Willms and the Association engaged in protected activity, claiming that it is
not protected activity for a DPD to insist on being represented by a DDA in an investigatory
interview, because of the inherent conflict between the two offices.
The Public Defender asserts that the ALJ erred in concluding that it failed to respond to
the Association's request to produce discipline policies of the Office of the Public Defender.
29

According to the Public Defender, the ALJ erred in failing to determine that the Public
Defender had no discipline policy other than "Rule Ten" of the County's personnel rules.
The Association's Exceptions and Response to the Public Defender's Exceptions
The Association also objects to the ALJ's protocol, but for opposite reasons from those
asserted by the Public Defender. According to the Association, a rule that restricts DD As from
representing DPDs during investigatory meetings in which case files and other client
information are discussed is too restrictive. Instead, the Association urges that DDAs be
permitted to represent DPDs in disciplinary meetings, provided that each attorney ensures on a
case-by-case basis that the actual representation of their clients is not compromised.
The Association urges PERE to assert jurisdiction over this matter, since it involves
activities that are arguably protected (the Association designating representatives) or
prohibited (the County restricting who the Association may designate) under the MMBA.
According to the Association, the objections the Public Defender raises to PERB's jurisdiction
are precisely the issues that could constitute a "legitimate business reasons" defense under
Tulare, supra, 167 Cal.App.3d 797 further supporting PERB's jurisdiction over the matter.
The Association agrees that the Weingarten/Rio Hondo test, as stated by the ALJ, is the correct
standard to determine whether a denial of representation has occurred.
The Association argues that the Public Defender's blanket policy prevented Berman
and other DPDs from participating in an investigatory interview with a representative from the
Association and interfered with the Association's right to represent employees.
According to the Association, Upland, supra, 111 Cal.App.4th 1294 and ALADS,
supra, 166 Cal.App.4th 1625, are not applicable here because both determined rights of police
officers under the Public Safety Officers Procedural Bill of Rights Act (POBOR), and did not
address rights under the MMBA. Moreover, the Association contends that in neither Upland
30

nor ALADS did the court sanction or otherwise approve of any restrictions on classes of
individuals who could serve as representatives in disciplinary meetings.
The Association asserts that there is no ethical rule that would prohibit DD As from
representing DPDs altogether, and urges PERB to reject the ALJ's proposed decision to the
extent it prohibits DDAs from representing DPDs in any disciplinary meeting in which client
information is discussed, in favor of a standard that would allow DD As and DPDs to evaluate
their ethical responsibilities on a case-by-case basis.
The Association further argues that because of the scarcity ofDPD representatives, if
PERB affirms the ALJ's standard, there is a significant risk that DPD employees facing
discipline for issues related to, for example, their handling of client matters will not have a
meaningful right to representation, as required by the MMBA, because these disciplinary
meetings may require some discussion of confidential client information. Therefore, the
Association urges PERB to adopt a more flexible approach that relies on the mechanisms
already set forth in the State Bar of California Rules of Professional Conduct.
Case No. LA-CE-554-M
Public Defender's Exceptions
As in Case No. LA-CE-431-M, the Public Defender disputes PERB's jurisdiction to
resolve the dispute, and excepts to the ALJ's ruling to the contrary.
The Public Defender excepts to multiple findings of fact made by the ALJ regarding the
separate nature of the offices of the DA and Public Defender, the nature of Drew's
investigative interview, the Association's ability to hire private counsel to represent Drew, the
allegedly crucial nature of investigatory interviews of DPDs, the failure to find that the
Association deviated from a past practice of assigning DPD representatives to represent DPD
31

attorneys in investigative interviews,14 and the failure to find that the Pub lie Defender is
obligated to conduct a reasonable investigation when it suspects employee misconduct.
The Public Defender further excepts to the ALJ's conclusion that it unilaterally
changed its policies embodied in the "Access to Personnel Records" and "Authorized
Employee Representatives" MOU language by implementing the "Confidential Information
Policy" and the "Potential Conflict Policy," despite the language of the MOU's "zipper
clause." The Public Defender alleges that it merely "memorialized what was already past
practice." (Respondent's Statement of Exceptions, p. 10.)
Association's Response to Exceptions
The Association's response to the County's exceptions is similar to its response in Case
No. LA-CE-431-M: it defends PERB's jurisdiction to resolve the disputes in this case because
the allegations involve activity that is arguably protected or prohibited by the MMBA. The
Association also argues that PERB should uphold the ALJ's proposed decision that the Public
Defender interfered with the protected rights of Drew and the Association by compelling Drew
to participate in the investigatory interview under threat of discipline, and that the Public
Defender violated its obligation to meet and confer in good faith by unilaterally imposing the
Confidential Information Policy and the Potential Conflict Policy.
DISCUSSION
PERB's Jurisdiction
PERB has initial exclusive jurisdiction over the issues raised in the complaints for both
cases. MMBA section 3509(b) states, in relevant part:
14 The Public Defender did not file an unfair practice charge against the Association
alleging unilateral change in policy. (See Standard School District (2005) PERB Decision
No. 1775 [employee organization can be liable for unilateral change in policy].)
32

(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board. The initial determination as to whether the
charge of unfair practice is justified and, if so, the appropriate
remedy necessary to effectuate the purposes of this chapter, shall
be a matter within the exclusive jurisdiction of the board ....
(Emphasis added.)
The California Supreme Court held in El Rancho Unified School Dist. v. National
Education Assn. (1983) 33 Cal.3d 946 (El Rancho) that PERB has exclusive jurisdiction over
activities arguably protected or prohibited by the Educational Employment Relations Act
(EERA)15 (Id. at 953, 960.) In San Jose, supra, 49 Cal.4th 597, 606, the Supreme Court
applied the El Rancho jurisdictional holding to the MMBA.
The Public Defender's denial of employees' request for union representation, its
attempts to restrict the Association's ability to designate representatives for its bargaining unit
members, and its threats of discipline against Willms and Drew, all fall within the "arguably
prohibited" prong of the San Jose test. Willms' and Drew's requests for union representation
at investigatory interviews and the Association's designation of representatives for such
interviews are rights arguably protected by the MMBA. Moreover, PERB has initial exclusive
jurisdiction to determine whether alleged conduct such as refusing to provide information
relevant to the Association's representation duties and unilaterally changing policies within the
scope of bargaining violates the duty to bargain in good faith. (San Diego Teachers Assn. v.
Superior Court (1979) 24 Cal.3d 1, 8, 14.)
The Public Defender's assertion that the Rules of Professional Conduct prohibit PERB
from resolving the MMBA is more appropriately characterized as a defense to its ban on cross-
representation than an impediment to our jurisdiction. We are mindful of the tension between
15 EERA is codified at Government Code section 3540 et seq.
33

attorneys' rights under the MMBA and their ethical responsibilities. (Santa Clara County
Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 532 (Woodside).) While we do not
presume to rule on the scope of the Rules of Professional Conduct, the Business and
Professions Code or other regulations concerning the practice of law, neither will the fact that
attorneys have obligations under those rules defeat PERB's jurisdiction to resolve alleged
violations of the statutes which PERB administers, including the MMBA. As Woodside, held,
publically employed attorneys have rights under the MMBA. Since 2001, when the MMBA
was brought under PERB; s jurisdiction, it remains our duty to adjudicate those rights.
Our assertion of jurisdiction does not interfere with the ability of the Supreme Court of
California or the State Bar of California to regulate the practice of law under the State Bar Act
(Bus. & Prof. Code§ 6000 et seq.), the Rules of Professional Conduct or the California Rules
of Court, because resolution of this dispute does not regulate the practice of law. 16 This
decision does not relieve any individual attorney from conforming to the Rules of Professional
Conduct and other regulations concerning the practice oflaw. Nor is any attorney compelled
by this decision to compromise his or her duties under the rules and statutes governing the
practice oflaw, and as we explain below, nothing in this decision prohibits the Public Defender
from electing not to conduct an interview in the first instance if it determines the risk of
information leaking to the DA is unacceptable.
For these reasons, we conclude that PERB has initial exclusive jurisdiction to
adjudicate these cases.
16 Under the constitutional doctrine of separation of powers, the courts have inherent
and primary regulatory power over the practice of law. (See Brydonjack v. State Bar (1929)
208 Cal. 439, 443). PERB has no power to regulate the practice oflaw.
34

DISCUSSION OF MERITS OF CASE NO. LA-CE-431-M
The Blanket Policy Prohibiting Cross-Representation
We first address whether the Public Defender's 2007 blanket policy refusing to allow
DDAs to represent DPDs during investigatory interviews interfered with the Association's
right to represent employees in violation of MMBA section 3503, and interfered with
employee rights to be represented by the Association, in violation of MMBA section 3506.17
We consider this policy as it was applied by the Public Defender to Willms and Drew, Le., an
absolute prohibition on cross-representation in investigatory interviews, coupled with the
directive that the employee submit to the interview, regardless of whether he secured
representation satisfactory to the Public Defender.
As a general matter, it is well settled that attorneys do not shed their right to join, form,
and participate in the activities of their chosen employee organizations by virtue of their public
employment. (Woodside, supra, 7 Cal.4th 525, 532.) The Woodside opinion however,
recognized that there could be a tension between attorneys' duties to clients and their rights as
employees under the MMBA:
The only realistic accommodation between the enforcement of
statutory guaranties under the MMBA and the enforcement of the
Attorneys' professional obligations in this situation [writ to
enforce employer's duty to meet and confer over wages] is to
permit a petition for writ of mandate, as would be permitted to
other public employees, while at the same time holding the
Attorneys to a professional standard that ensures that their actual
representation of their client/employer is not compromised.
(Id. at p. 553; italics in original; emphasis added.)
17 As noted earlier, the complaint in Case No. LA-CE-431-M did not allege that.the
County's unwritten blanket policy (as opposed to the written Confidential Infonnation Policy
and Potential Conflict Policy) constituted a unilateral change.
35

It is well-established that employees and employee organizations have rights,
respectively to be represented and to represent at investigatory meetings that the employee
reasonably believes will result in discipline. (Rio Hondo, supra, PERB Decision No. 260;
Weingarten, supra, 420 U.S. 251; San Bernardino, supra, PERB Decision No. 1270, ALJ
Proposed Dec. p. 63; Social Workers' Union, Local 535 v. Alameda County Welfare Dept.
(1974) 11 Cal.3d 382.)
Equally well-established is the right of employee organizations (and employers) to
designate their representatives in the collective bargaining relationship without interference or
veto by the other party. (San Ramon Valley Unified School District (1982) PERB Decision
No. 230, p. 16.)
MMBA section 3506 prohibits public agencies from interfering with or discriminating
against public employees because of the exercise of their rights under MMBA section 3502.
Where the employer's conduct interferes with or tends to interfere with, restrain or coerce
employees in the exercise of those activities, PERB applies the test originally articulated in
Tulare, supra, 167 Cal.App.3d 797, and subsequently refined in Stanislaus, supra, PERB
Decision No. 2231. 18 If the employer's conduct interferes with protected conduct, the burden
shifts to the employer to articulate a legitimate justification for its conduct. The scrutiny with
which the employer's conduct will be examined depends on the severity of the harm. As noted
in Stanislaus, in pertinent part:
3. 	Where the harm to employees' rights is slight, and the
employer offers justification based on operational necessity, the
competing interest of the employer and the rights of the
employees will be balanced and the charge resolved accordingly.
18 See also City of Monterey (2005) PERB Decision No. 1766-M, applying Tulare test
where employer denied an employee right to union representation in a civil service hearing.
36

4. 	Where the harm is inherently destructive of employee
rights, the employer's conduct will be excused only on proof that
it was occasioned by circumstances beyond the employer's
control and that no alternative course of action was available.
(Stanislaus, pp. 22-23; citing to Carlsbad, supra, PERB Decision No. 89, pp. 10-11.)
There can be little doubt that the County's across-the-board prohibition of cross-
representation in any investigatory meetings is inherently destructive of both employees' right
to be represented and the Association's right to represent unit members. In the circumstances
of this case where the Association has appointed no DPDs as labor representatives, the Public
Defender's policy prevents attorneys in the Office of the Public Defender from ever being
represented by Association representatives in investigatory interviews or other disciplinary
proceedings. 19
The harm here is three-fold: (1) Individual employees are deprived of the
representatives whom their Association deems best suited to represent them in investigatory
interviews, and are in fact deprived of any representation; (2) the Association is prohibited by
the employer from determining who its labor representatives will be; and (3) the Association is
deprived of its right to represent bargaining unit members. The Public Defender's policy is
19 We note that the Public Defe~der's policy seems to permit representation by outside
attorneys ( although makes no mention of other alternatives, such as representation by non-
attorney Association staff), which policy was reiterated by the Public Defender at oral
argument in this case. The Public Defender, however, conditions this limited exception on the
outside attorney agreeing to keep Public Defender clients' (i.e., criminal defendants)
confidences and not reveal such confidential matters to DD As who comprise much of the
leadership of the Association. This concession differs from the policy the Public Defender
actually implemented in the case of Drew, where the Public Defender insisted that his outside
counsel agree to keep the personnel matters involving DPDs confidential and specifically not
divulge those matters to the Association, or its DDA officers and representatives. Drew was
the only DPD who sought attorney representation. He was not able to obtain outside counsel
who was willing to agree to the confidentiality requirements with respect to the Association.
37

inherently destructive of protected rights because it is a complete denial of the employees'
right to representation and the Association's right to represent.
The implementation of this policy first as to Willms and then as to Drew, further
underscores that its inherently destructive quality. Rather than utilizing its options described in
Weingarten, supra, 420 U.S. 251; Roadway Express, Inc. (1979) 246 NLRB 1127, 1128
(Roadway Express), and San Bernardino, supra, PERB Decision No. 1270, to forego an
employee interview when presented with a demand for union representation, the Public
Defender insists on having its proverbial cake and eating it too by forcing the employee to
attend the interview without representation.
Under the Weingarten and Rio Honda options, both the employer and the employee are
presented with certain choices, each of which carries its own set of risks. An employer may
abandon the interview when presented with an employee request for representation. When an
employer exercises that option, it foregoes the possibility of discovering exculpatory evidence
or considering policy reasons not to discipline an employee before investing significant
resources in preparing for the disciplinary procedures.20 Likewise, if an employee exercises
his or her option not to be interviewed, he or she loses the potential for early exoneration.
In this case, the Public Defender argues it should be relieved of this Robson's choice
because of the unique circumstances of the inherent conflict of interest between the functions
of the DA and the Public Defender. We now tum to that argument.
20 Under Weingarten, supra, 420 U.S. 251; Roadway Express, supra, 246 NLRB 1127
and San Bernardino, supra, PERB Decision No. 1270, when an employee requests
representation in an investigatory interview, the employer may exercise one of three options:
(1) it may grant the employee's request for representation; or (2) it may discontinue the
interview; or (3) offer the employee the choice of proceeding with the interview without union
representation or having no interview.
38

The Public Defender's Justification For Denying Cross-representation
Having found that the Public Defender's blanket prohibition on cross-representation in
all investigatory meetings, combined with its insistence that employees participate in such
interviews without representation, is inherently destructive of rights guaranteed to both
employees and their organizations, the burden shifts to the' Public Defender to prove that the
policy was occasioned by circumstances beyond its control and that no alternative course of
action was available. For reasons discussed below, we conclude that the Public Defender has
demonstrated that its policy was necessitated by cir~umstances beyond its control, namely the
failure of the Association to appoint any DPDs as labor representatives. However, the Public
Defender has failed to show that no alternative course of action was available. Consequently,
we conclude that its policy and the way it was implemented violates the MMBA.
As an initial matter, we agree that the Public Defender has a legitimate reason to
exclude DDAs from investigatory meetings, at least where the Public Defender's client
confidential information or Public Defender work product is likely to be revealed. It may also
be justified in preventing such cross-representation where the representing DDA is the
opposing counsel to the DPD in a criminal case, or in other situations in which the rules of
professional responsibility or rules of court require that the representation be disclosed to the
Public Defender's client, and/or that either attorney would be forced to disqualify himself or
herself from further representation in the criminal case. The ban on cross-representation
advanced these legitimate employer interests.21 The Public Defender's justifications for its
policy are all based on the inherent adversarial relationship between the interests of the client
21 However, not all investigatory interviews involve review of Public Defender client
files or the revelation of client confidences, or the divulging of work product. As we explain
further below, we believe the Public Defender improperly extended the definition of work
product, at least with respect to the Drew interview.
39

of the DA (the state) and the clients of the Public Defender-one seeks to prosecute alleged
criminal conduct, and the other is dedicated to defending against such prosecution.
The Public Defender urges the Board to take a broad view of client confidentiality.
According to the Public Defender, an attorney's duty of confidentiality requires him or her not
only to keep confidential matters revealed by the client, but all information obtained during the
course of representation that would be embarrassing or potentially detrimental to the client.
Thus, client confidences include not only information that might literally be in case files of the
Public Defender, but any information that would interfere with the ability of the Public
Defender to represent its clients.22
Likewise, the Public Defender reasonably asserts that the attorney work product of
DPDs must not be revealed to the DDAs during the course of an investigatory meeting, but
takes an overly broad view of what constitutes work product. The Public Defender asserted
that the work product privilege extended to what it considered "work processes" and anything
that touches on the internal operations of the Public Defender's office, such as a DPD's poor
record-keeping practices. Penal Code section 1054.6 ( citing to California Code of Civil
Procedure,§ 2018.030) defines "work product" more narrowly as any "writing that reflects an
attorney's impressions, conclusions, opinions, or legal research or theories." We agree with
22 The Public Defender relies on Coronado Police Officers Assn. v. Carroll (2003)
106 Cal.App.4th 1001 (Carroll) in support of this contention. In that case, the police officers
association made a request under the California Public Records Act for the public defender's
data base, showing not only client files, but allegations of police violations of Fourth
Amendment rights and investigations into police misconduct. The court held that the data base
was not a public record, and even if it were, it was exempt from disclosure because the public
interest in not disclosing the record outweighs the interest in disclosure. Because Carroll was
decided under the Public Records Act, we do not find it persuasive in resolving the labor law
issues before us in this case. More to the point, our resolution of the alleged violations of the
MMBA in this case does not tum on a determination of what in the Public Defender's files is
confidential.
40

the ALJ that the Public Defender failed to show how internal office procedures for
documenting work fell within the definition of "work product."
Even in the absence of confidential information or work product potentially being
revealed to the DDA, the Public Defender asserts that the banon cross-representation in
investigatory interviews is justified based on the inherently incompatible and adversarial nature
of the respective duties and obligations of DA and Public Defender.23 The Public Defender
asserts that the relationship between a DDA representing a DPD who is being investigated or
disciplined establishes a relationship akin to an attorney-client relationship. If the DPD who is
being investigated or disciplined becomes dependent on or beholden to the DDA who
represents him or her, the Public Defender implies that the DPD willbe less zealous in
representing his or her client because the DPD will want to curry favor with the DDA.
The Public Defender also points to the standards of the National District Attorneys
Association which state that a prosecutor should avoid representation of a person who is
charged or indicted and "any agent or close relative of that person." (Resp. Ex. 15.) Because
DPDs are agents of a person who has been indicted, the Public Defender asserts this standard
supports its decision to ban cross-representation.
The Public Defender is also concerned that in the course of representing a DPD in a
disciplinary investigation, the DDA could learn of adverse information such as health issues,
drug or alcohol abuse, tardiness, dishonesty, or other weaknesses that the DDAmay exploit to
the benefit of the prosecution in a criminal case. 	Conversely, a DDA may be tempted to
refrain from vigorously representing a DPD in a disciplinary matter because he or she is
particularly effective in criminal cases and his or her termination would benefit prosecutors. In
For example, a prosecutor may not represent or assist in the defense of any person
accused of a crime. (Govt. Code, § 26540.)
41

sum, the Public Defender broadly asserts that the Office of the DA has no right to information
that touches upon the effectiveness of representation by the Public Defender.
The Public Defender also asserts that without a ban on cross-representation, obtaining
and maintaining client trust in its DPDs would be impossible. As Michael Judge, the Public
Defender of Los Angeles County, explained, many public defender clients believe that public
defenders are not real lawyers, or that they are beholden to the DA in the hopeof future
promotion to that office. Boxer echoed this view. 	She testified that public defender clients
believe that their DPDs just want to dump their cases so they can have lunch with the DDA.
Were public defender clients to learn that their DPDs (or DPDs in general) were represented by
DD As in personnel matters, client trust in their DPDs wouldbe further eroded or impossible to
establish. This policy concern, of course, has nothing to do with whether client confidences
are actually revealed to DD As.
According to the Public Defender, cross-representation also intrudes on the
discretionary authority of the DA because the DA will have to assure that the DDA who
represented a DPD in an investigatory interview is not assigned to a case in which that DPD
represents the accused. This not only creates an administrative record-keeping burden,
according to the Public Defender, but more importantly, it impermissibly encroaches on
prosecutorial discretion, which includes making attorney assignments. (People v. Dehle (2008)
166 Cal.App.4th 1380, 1387.)
In our view, these are all valid concerns, none of which can be addressed by merely
leaving it to individual DDAs and DPDs to assess their ethical duties.
The Association's proposal to leave it to the individual DPD and DDA to "evaluate
their ethical responsibilities on a case-by-case basis," does not address the Public Defender's
broader policy concerns discussed above, other than client confidentiality and attorney work
42

product. Nor does the Association explain what should happen if either the DPD or the DDA
determir,ies that ethical considerations preclude the cross-representation in a particular case,
given that the Association has no DPDs that serve as labor representatives.
The Association also suggests that the Public Defender's concerns with actual conflicts,
e.g., where Public Defender client confidential information is divulged during the disciplinary
investigation, can be ameliorated by simply assigning a different DDA to the criminal case, or
by obtaining a waiver of confidentiality from the criminal defense client.
We are persuaded by the Public Defender's explanations why this is an impractical
accommodation. Keeping track of which DPDs and which DD As are assigned to which
criminal cases would likely prove exceptionally burdensome. As explained by an expert
witness, Mark Tuft, any past representation relationship between a DDA and a DPD would
have to be disclosed to the DPD's client and to the court (R.T. Vol. IV, p. 81; Vol. VI,
pp. 61-66.) Such disclosure is likely to cause the criminal defendant to file a motion for a new
defense counsel or a motion to disqualify the DDA. If no disclosure is made, any conviction
could be at risk on the ground that the defendant received ineffective assistance of counsel.
By the same token, voluntary recusal by DD As who participate in an investigatory
meeting on behalf of a DPD is not a viable option, as it could create considerable disruption to
the criminal justice system. For example, if a DDA who had spent years on a capital murder
case faced the need to recuse himself or herself after receiving confidential information in the
course ofrepresenting a DPD, the resulting delays would risk grave harm to the interestsof the
defendant and the public.
Nor are we persuaded that the conflict of interest problem can be solved, as suggested
by the Association, simply by requiring DPDs who are represented by DD As to disclose such
relationship to their clients and presumably obtain consent from the client. Such a solution
43

does nothing to address the Public Defender's legitimate concern that the fragile trust between
public defenders and their clients would be eroded if and when the clients learn that their
attorney is being represented in a personnel matter by a DDA. It in fact would seem to
exacerbate the problem. Moreover, it seems highly unlikely that clients would grant such
waiver, given the frail trust they repose in the Public Defender.
In light of these circumstances, unique to this workplace, the Public Defender presents
persuasive policy reasons justifying its blanket policy against cross-representation. This
conclusion, however, does not end our inquiry.
Because this policy is inherently destructive to protected rights of both employees and
the Association, we consider under the third prong of the Stanislaus/Carlsbad test, whether the
Public Defender's policy was occasioned by circumstances beyond its control and whether any
alternative course of action was available. Because the Public Defender had no power over
whom the Association appointed as stewards or representatives, or over the fact that the
Association had not appointed any DPDs as labor representatives, it is clear that the policy was
occasioned by circumstances beyond the employer's control.
However, there were obvious alternatives available to the Public Defender. For
purposes of assessing the alternatives available to the Public Defender, we look not only to the
Public Defender's initial iteration of the 2007 policy, but also to the way the Public Defender
applied the policy to Willms and Drew. It was in the application of the policy that the Public
Defender revealed its broader scope, specifically the Public Defender's insistence on
proceeding with the investigatory interview, even if it banned the Association representative
from. that interview.
When presented with a situation in which a DDA seeks to represent a DPD in an
investigatory interview that would result in client confidences or attorney work product being
44

revealed to the DDA, the Public Defender could simply decline to proceed with the interview
and continue its investigation by other means.24 Alternatively, the Public Defender could redact
sensitive information from materials involved in the investigatory interview.
Another alternative suggested by the Public Defender at oral argument would be to
permit a third-party attorney to represent the DPD in the investigatory interview on the
condition that the attorney agree not to reveal the confidences of Public Defender clients or
Public Defender work product to any DD As, including those who serve in leadership positions
in the Association. The viability of this alternative, of course, is dependent on the attorney
agreeing to the conditions, and we do not presume to direct the Association to agree to them.
Nor do we presume to direct the Association to limit itself to representing employees only with
attorneys.
What the Public Defender may not do is seek to secure for itself the benefits of an
investigatory interview with an employee suspected of wrongdoing by compelling the
employee's attendance at the interview, while it denies the employee and the Association their
respective representation rights, including the employee's right to decline to be interviewed
without threat of insubordination. (See, e.g., Slaughter v. National Labor Relations Board,
876 F.2d 11, 13 (3d Cir. 1989) amended sub nom. Slaughter v. National Labor Relations
Board (3d Cir. Aug. 14, 1989): "In Weingarten, the Supreme Court held that Sec. 7 of the
National Labor Relations Act (the Act) protects an employee's right to refuse to submit to an
investigatory interview without a union representative present.")
24 The Public Defender could dispense with the investigatory interview for any of the
reasons it has asserted here as justification for its ban on cross-representation. However, in
doing so, it invites argument from the employee and/or Association in a disciplinary
proceeding that the Public Defender denied the employee due process by avoiding the
investigatory interview when there was no compelling reason to do so.
45

The Public Defender argues that San Bernardino, supra, PERB Decision No. 1270, was
incorrectly applied by the ALJ because an employer's use of the option to dispense with the
interview would preclude the need for PERB to inquire whether the employer's regulation of
the right to representation was reasonable or whether extenuating circumstances justify an
employer's rejection of the designated representative. The Public Defender also asserts that
because of the inherent conflict of interest between the Public Defender and the DA, it should
be exempt from the Weingarten/San Bernardino framework, i.e., it should not have to choose
between foregoing the interview and permitting a DDA to represent a DPD.
We disagree with both arguments. The ALJ correctly characterized and applied the rule
in San Bernardino, supra, PERB Decision No. 1270, a rule that has long governed and
qualified the right of representation. That rule incorporates the employer's extenuating
circumstances by permitting it to dispense with the interview. The fact that foregoing an
employee interview carries certain risks will presumably act-as a check on an overly broad
interpretation of extenuating circumstances.25 While we recognize the uniqueness of this
bargaining unit and the representation quandaries presented by the failure of the Association to
appoint DPDs as labor representatives, and readily acknowledge the good reasons the Public
Defender has in excluding DDAs from many investigatory interviews with DPDs, the solution
to that problem does not lie in carving an exception to the Weingarten framework, for that
framework already contains the exception. The employer may simply forego the interview.
In sum, although the Public Defender has presented ample justification for its ban on
cross-representation, a policy that was necessitated by circumstances beyond its control, it has
25 By the same token, the fact that an employer may decline to interview the employee
may inspire the Association in this case to appoint labor representatives who are not DDAs.
46

nevertheless failed to show that it had no alternative to the inherent destruction the ban caused
to representation rights under the MMBA.
For these reasons, we hold that the County's 2007 policy banning cross-representation
in this particular workplace violates the MMBA.
We now tum to the application of the policy in the individual cases of Willms and
Drew.
Denial of Representation Rights To DPD Willms
The ALJ concluded that the Public Defender retaliated and discriminated against
Willms by threatening him with discipline or termination, a threat that "grew promptly and
directly out of the protected conduct" (of asking for representation in an investigatory
interview.) (Proposed Dec., p. 10.) In the ALJ's view, the County's directive and threat of
discipline was done in retaliation against Willms for his invoking his Weingarten/Rio Hondo
rights.
As noted earlier, when confronted with Willms' request for Association representation
in the investigatory interview, the Public Defender could either grant the request, or inform the
employee that it will not permit the representative to be present, and the employee has the
option of attending the interview without a representative or decline to be interviewed. Or the
employer may dispense with the interview entirely. (San Bernardino, supra, PERB Decision
No. 1270, ALJ Dec., p. 63.) Not included in those options is the employer's persistence in
proceeding with the interview without the employee's representative present. (California State
University, Long Beach (1991) PERB Decision No. 893-H.) Nor may the employer threaten
the employee with additional discipline for declining to attend the interview without
representation.
47

Regardless of whether the Public Defender's prohibition on cross-representation was
justified, Willms ultimately had the right to decline to be interviewed or to submit to the
interview unrepresented. The Public Defender was never privileged to threaten Willms with
insubordination after failing to give him those options. It was this threat that we find to have
violated the MMBA.26
The Public Defender argues that Upland, supra, 111 Cal.App.4th 1294; ALADS, supra,
166 Cal.App.4th 1625, absolve it ofliability with respect to Willms.
The Upland decision held that under the POBOR, a police officer did not have the
discretion to delay an investigatory interview indefinitely based on the unavailability of his
attorney. TheALADS decision (again under POBOR) upheld a "no-huddle" rule prohibiting
officers involved in shootings from meeting collectively with a single attorney prior to
investigatory meetings, but upheld the right of each officer to meet with the attorney
individually.
Neither Upland, supra, 111 Cal.App.4th 1294 and ALADS, supra, 166
Cal.App.4th 1625 considered the scope of an employee's right to representation afforded by
the MMBA, or the rights of employee organizations under the MMBA to represent employees
in their employment relations. Both cases involved rights under POBOR, a law that describes
and confers due process rights on individual law enforcement and other public safety officers.
26 Unlike the ALJ's analysis, we conclude that the Public Defender's treatment of
Willms was an interference with his rights, rather than retaliation against him for asserting
those rights. The Public Defender applied its blanket policy prohibiting cross-representation to
Willms. There is no evidence that it was motivated to retaliate against him in particular
because he requested representation. The nature of a blanket policy-one applicable in all
situations-belies an illegal motive to retaliation against a particular employee. See DPA,
supra, PERB Decision No. 2106a-S for a discussion of the difference between retaliation
against employees for engaging in protected activities and interference with employees in the
exercise of protected rights. 	Regardless of whether the Public Defender retaliated against
Willms or interfered with his protected rights (and that of the Association), the remedy would
be the same.
48

Because the rights involved in Upland and ALADS are distinct from those conferred by the
MMBA and with which we are concerned in this case, we do not find either POBOR case
apposite to the dispute before us.
Even were we to ignore the different underlying statutory source, we are not persuaded
by the County's argument based on these cases. 	The County argues that, like in Upland,
supra, 111 Cal.App.4th 1294 , the representative selected by the Association was "unavailable"
because DDA representation of a DPD would pose an inherent conflict of interest or violate the
participating attorney's ethical responsibilities. The County, in essence, asks that we interpret
the term "unavailable" to mean that the union representative is unacceptable to the employer.
We decline the County's invitation. Even in Upland, supra, 111 Cal.App.4th 1294, the
"unavailability" of the attorney was unquestionably "physical unavailability," and we see no
reason to use a different standard under the Weingarten/Rio Hondo test. See also In re
Anheuser-Busch, Inc. (2001) 337 NLRB 2, holding that requested union representative was
available, even though he was on a short lunch break.
We find persuasive this decision explicitly linking "availability'' with physical
"presence." Since Caldwell's physical presence made her "available" to represent Willms, the
County (under the Weingarten/Rio Hondo framework) was obligated to give Willms the choice
of proceeding without representation or foregoing the interview, and to refrain from
threatening Willms with discipline for failure to attend the interview.
The fact that Willms and the Association ultimately withdrew their request for
representation does not shield the County from liability. The violation occurred when the
County threatened Willms with discipline for insubordination, regardless of Willms' or the
Association's subsequent action.
49

Failure To Provide Policy Manual
We affirm the ALJ' s conclusion that the County violated the MMBA by failing to
honor the Association's request to provide the Association with the policy manual with respect
to DPD discipline.
The exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge of its duty of representation. (Stockton Unified School District
(1980) PERB Decision No. 143.) PERB uses a liberal standard, similar to a discovery-type
standard, to determine relevance of the requested information. (Trustees of the California
State University (1987) PERB Decision No. 613-H.) Failure to provide such information is a
per se violation of the duty to bargain in good faith.
Notwithstanding the liberal standard, an employer can refuse to release information that
is otherwise "necessary and relevant" if, for example, it will imp?se burdensome costs on the
employer, or the release will compromise employee privacy rights. (Los Rios Community
College District (1988) PERB Decision No. 670, p. 13 (Los Rios); Modesto City Schools and
High School District (1985) PERB Decision No. 479, p. 11.) However, the employer must
affirmatively assert its concerns, and then both parties must bargain in good faith to ameliorate
those concerns. (See, e.g., Los Rios, pp. 10-12 [employer bargained in good faith by offering
to delete social security numbers from requested document].) The employer cannot simply
ignore a union's request for information.
When asked by the Public Defender's counsel if the Association had demanded or
requested a manual that was the Public Defender manual only for discipline of public
defenders, Boxer responded: "Yes. Yes, they did ask for it, and we didn't give them anything
because it's available publically to Mr. Merritt and his people ... on the internet."
50

Boxer's concession that the Public Defender refused the Association's request to
provide a physical document relevant to the Association's role as collective bargaining
representative is not excused by Boxer's assertion that the information is on the internet. The
Public Defender presented no evidence of what may or may not have been "on the internet" at
the time of the request, whether it was responsive to the Association's request, whether it was
up to date, or whether it conveyed what the Public Defender intended to convey to the
Association.
Because of the insufficiency of the Public Defender's evidence on this point, we hold
that the Public Defender's response did not satisfy its duty to provide the Association with the
requested information that Boxer concedes was in the County's possession at the time of the
request.
DISCUSSION OF MERITS IN CASE NO. LA-CE-554-M
Mark Drew
As it did with Willms, the Public Defender ordered Drew to attend an investigatory
interview once the Public Defender determined that his representative, Marianne Reinhold,
was unacceptable. Drew was threatened with a charge of insubordination if he did not attend
an investigatory interview. As it did with Willms, the Public Defender failed to give Drew the
option of forgoing the interview. For the reasons discussed above, at pages 46-47, we find that
the Public Defender violated Drew's Weingarten/Rio Hondo rights, thereby interfering with
Drew's right to representation and with the Association's right to represent employees.
The Public Defender contends that there was no interference with protected rights
because by the time Drew's interview occurred, the Association was aware of the Public
Defender's opposition to DDAs being informed of confidential infonnation discussed during
personnel meetings, and cites to Upland, supra, 111 Cal.App.4th 1294 for support. As
51

explained earlier at page 49, Upland provides no guidance in this case. Moreover, the Public
Defender's alleged advanced notice that it would ignore the Weingarten/Rio Hondo framework
is no defense to an actual violation of the law. Advance notice does not obligate either the
Association or Drew to accommodate that violation of Drew's and the Association's rights.
Regardless of whether or not confidential or other sensitive information was disclosed during
the interview with Drew, the Public Defender's order, under threat of discipline, that he attend
the investigatory interview even without requested representation, violated the
Weingarten/Rio Hondo requirements.
Likewise, the Public Defender points to no authority supporting its contention that it
was legally obligated to interview Drew as part of its disciplinary investigation, thus excusing
its threat to discipline him for insubordination if he failed to attend the interview. Neither the
Weingarten/Rio Hondo framework, nor any other PERB or National Labor Relations Board
authority, supports the Public Defender's argument.
The Public Defender also points to no authority suggesting that the
Weingarten/Rio Hondo framework applies with any less force to DPDs and DD As than to any
other classification of employees protected under the MMBA. As noted above, the Public
Defender can avoid the disclosure of confidential information by simply foregoing the
employee interview under the Weingarten/Rio Hondo framework if the Association appoints a
DDA to represent a DPD. This fact, coupled with the unquestionable "availability" of Drew's
union representative, render the Public Defender's arguments unavailing.
Unilateral Change of Representation Policy in MOU
The Public Defender excepts to the ALJ' s finding that it unilaterally changed the
representation policy of the MOU on two grounds: (1) that the Public Defender's adoption of
the two written policies merely reflected the past practice of the parties, and (2) that the Public
52

Defender's written policies were justified by a legitimate business reason given the serious
constitutional and ethical issues implicated by the Association's failure to designate DPDs as
representatives, and the relative ease with which the Association may appoint DPDs to
represent other DPDs.
We agree with the ALJ's conclusion that the Public Defender unilaterally changed a
policy within the scope of representation when it implemented its Confidential Information
Policy in March 2009. An employer may not implement changes in a collective bargaining
agreement (CBA) without first obtaining the consent of the employee organization. (Glendale
City Employees Assn. Inc. v. City of Glendale (1975) 15 Cal.3d 328,335; Calexico Unified
School District (1983) PERB Decision No. 357, ALJ Proposed Dec., p. 11, fn. 6 (Calexico).)
This is true whether the parties have agreed to a "zipper clause" or not. In this case, where the
parties had agreed that there would be no further negotiations during the life of the MOU on
matters referred to or covered in the MOU, there was additional justification for the
Association to refuse to engage in any negotiation over the Public Defender's attempt to
change the terms of the MOU mid-term. (Oakland, supra, PERB Decision No. 1770.)
The Public Defender's argument that the parties' past practice regarding DPD-DDA
cross-representation trumps the wording of the MOU and the "zipper clause" is unavailing.
PERB decided in Stockton Unified School District (2005) PERB Decision No. 1759 that when
parties' past practice conflicts with the wording of their CBA, each party "still maintains the
right to adhere to and enforce the contractual language of the CBA." (Id. at pp. 3-4.) More
significantly, the Association's right to represent the bargaining unit members derives from
EERA, not the MOU. Regardless of any alleged past practice between the parties, the
Association was within its rights to insist that its statutory right to represent the members of the
bargaining unit be honored.
53

The Public Defender's position that it is excused from the obligation to bargain over the
Confidential Infonnation Policy and Potential Conflict Policy because of "legitimate business
reasons" is unsupported by the law or the facts of this case.
PERB has recognized that under exceptionally limited circumstances, an employer may
be excused from negotiating on the basis of true emergency that provides a basis for claiming
that a business necessity excused a unilateral change. (Cloverdale Unified School District
(1991) PERB Decision No. 911). However, to establish "operational necessity" or "business
necessity" as a defense to a unilateral change, the employer must establish an actual financial
or other emergency that leaves no alternative to the action taken and allows no time for
meaningful negotiations before taking action. (Calexico, supra, PERB Decision No. 357, ALJ
Proposed Dec., p. 20.) The alleged necessity must be the unavoidable result of a sudden
change in circumstance beyond the employer's control. (Lucia Mar Unified School District
(2001) PERB Decision No. 1440, ALJ Proposed Dec., p. 46.) Thus, a unilateral change was
permitted in Sonoma County Organization, Etc. Employees v. County of Sonoma (1991) 1 Cal.
App.4th 267, where a strike created an unforeseen situation calling for immediate action with
an imminent and substantial threat to public health or safety. The court noted that
"emergency" is not synonymous with expedient, convenient, or in the best interestof the
employer.
The Public Defender's alleged "legitimate business reasons" do not rise to the required
level of an unforeseen and unavoidable result due to a sudden change in circumstance beyond
the employer's control. The Public Defender knew of the circumstances that led to it
implementation of its blanket rule as early as 2007, viz. that the Association had not appointed
any DPDs to be labor representatives. Between then and 2009, when it unilaterally
implemented its new and expanded policy, the Public Defender cites no evidence of any
54

exigent circumstances that could justify its unilateral action. We therefore reject the Public
Defender's claim that it was excused from the duty to bargain in good faith by a business
necessity.
REMEDY
Having concluded that the Public Defender's 2007 policy prohibiting representation in
investigatory interviews ofDPDs by DDAs is inherently destructive of employee and
Association rights guaranteed by the MMBA, and that the Public Defender has failed to
demonstrate that it had no alternative to implementing this policy, we will order the Public
Defender to cease and desist from maintaining that policy and from requiring employees to
. attend investigatory interviews without Association representation. ( Omnitrans (2010) PERB
Decision No. 2143-M.)
PERB' s remedial authority also includes the power to order the offending party to take
affirmative actions to effectuate the purposes of the MMBA. ( City of Redding (2011) PERB
Decision No. 2i90-M.) Thus, we will order the Public Defender to rescind and expunge any
discipline of Willms or Drew based on the unlawfully implemented policy. We also order that
the Public Defender remove from any files it maintains concerning Willms and Drew any
documents that refer to their requests for representation in investigatory interviews at issue in
this case.
In cases where the employer has unilaterally changed negotiable terms and conditions
of employment, it is appropriate and within PERB's authority to order a return to the status quo
ante by rescinding the unilateral change. ( County of Sacramento (2009) PERB Decision
No. 2045-M.) We therefore order the Public Defender to rescind its Confidential Information
Policy and Potential Conflict Policy implemented in March 2009, and rescind and expunge any
discipline based on these policies and make any and all affected employees whole.
55

We also find that the Public Defender violated the MMBA when it failed to honor the
Association's request to provide the Association with the policy manual with respect to DPD
discipline and will order it to provide the information forthwith.
ORDER
Upon the foregoing findings of fact and conclusions oflaw, and the entire record
in Case Nos. LA-CE-431-M and LA-CE-554-M, it is found that the County of San Bernardino
(Office of the Public Defender) (Public Defender or County) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3502, 3503, 3505, and 3506 and Public
Employment Relations Board (PERB or Board) Regulation 32603(a), (b), and (c) (Cal. Code
Regs., tit. 8, § 31001 et seq.
(1) 	By implementing a policy in 2007 that denied to deputy public defenders the
right to be represented by the Association and required employees to attend investigatory
meetings without representation under threat of insubordination;
(2) 	By threatening Stephan Willms (Willms) and Mark Drew (Drew) with
insubordination if they failed to participate in an investigatory meeting that they reasonably
expected could lead to disciplinary action, and by ordering them to continue with that meeting
without representation under threat of discipline for insubordination;
(3) 	By unilaterally changing in 2009 the term of the parties memorandum of
understanding that permitted the Association to select representatives for investigatory
meetings and other disciplinary matters;
(4) 	By failing to provide the San Bernardino County Public Attorneys Association
(Association) with the policy manual with respect to discipline of attorneys in the Office of the
Public Defender.
56

Pursuant to section 3509(b) of the Government Code, it hereby is ORDERED that the
County, its governing board and its representatives and the Office of the Public Defender shall:
A. 	CEASE AND DESIST FROM:
1. 	Promulgating or implementing any policy that requires bargaining unit
members to attend investigatory interviews without representation by Association-appointed
representatives;
2. 	Threatening Association members Willms, Drew or any other bargaining
unit members with discipline for failing to appear at an investigatory interview if they request
representation by the Association;
3. 	Failing to negotiate in good faith by failing to provide the Association
with requested information relevant to its representation rights and duties viz., the policy
manual with respect to discipline of attorneys in the Office of the Public Defender;
4. 	Unilaterally changing terms of the parties MOU concerning the
Association's right to designate representatives in the personnel matters including
investigatory meetings.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Restore the status quo ante and rescind the unilaterally implemented
March 24, 2009, policies entitled "Confidential Information in Attorney Personnel Actions"
and "Potential Conflict Situations Due To Defined Relationships," and any other policies that
require unit members to attend investigatory interviews without representation by Association-
appointed representatives;
2. 	Provide the Association with the policy manual with respect to discipline
of attorneys in the Office of the Public Defender;
57

3. 	Rescind the January 7, 2009, e-mail threatening to terminate Willms if
he did not appear at the investigatory interview scheduled for January 8, 2009, and remove all
copies of the e-mail from Willms personnel file;
4. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the County Office of the Public
'
Defender are customarily posted, copies of the Notice attached hereto as an Appendix. The
Notice must be signed by an authorized agent of the County, indicating that it will comply with
the terms of this Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. In addition to physical posting of paper notices, the Notice shall be
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the County to communicate with its employees in the bargaining unit represented by
the Association. Pursuant to City of Sacramento (2013) PERB Decision No. 2351 and other
applicable authority, the County shall identify and include in its electronic posting any and all
affected employees who are no longer employed by the County as of the date of posting, or use
personal delivery or some alternative means of notification reasonably devised to ensure that
any and all affected employees who are no longer employed by the County are advised of their
rights and remedies under this Decision. Reasonable steps shall be taken to ensure that the
Notice is not reduced in size, altered, defaced or covered with any other material;
5. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. Respondent
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on the Association.
Members Huguenin and Banks joined in this Decision.
58

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC E:MPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CE-431-M and LA-CE-554-M,
San Bernardino County Public Attorneys Association v. County of San Bernardino (Office of
the Public Defender), in which all parties had the right to participate, it has been found that the
County of San Bernardino violated the Meyers-Milias-Brown Act (MMBA), Government
Code section 3500 et seq. by (1) by denying the San Bernardino Public Attorneys Association
(Association) and its members Mark Drew and Stephen Willms the right to represent and be
represented during meetings where there was a reasonable expectation of discipline and
ordering Drew to continue with that meeting without representation under threat of
insubordination; (2) by unilaterally changing a policy concerning the Association's right to
select its representatives for Deputy Public Defenders in personal actions, including
investigatory meetings; and (3) by failing to provide relevant information requested by the
Association.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Promulgating or implementing any policy that requires bargaining unit
members to attend investigatory interviews without representation by Association-appointed
representatives;
2. 	Threatening Association members Willms, Drew or any other bargaining
unit members with discipline for failing to appear at an investigatory interview if they request
representation by the Association;
3. 	Failing to negotiate in good faith by failing to provide the Association
with requested information relevant to its representation rights and duties, viz., the policy
manual with respect to discipline of attorneys in the Office of the Public Defender;
4. 	Unilaterally changing terms of the parties memorandum of
understanding concerning the Association's right to designate representatives in personnel
matters, including investigatory meetings.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Restore the status quo ante and rescind the unilaterally implemented
March 24, 2009, policies entitled "Confidential Information in Attorney Personnel Actions"
and "Potential Conflict Situations Due To Defined Relationships," and any other policies that
require unit members to attend investigatory interviews without representation by Association-
appointed representatives;

2. 	Provide the Association with the policy manual with respect to discipline
of attorneys in the Office of the Public Defender;
3. 	Rescind the January 7, 2009, e-mail threatening to terminate Willms if
he did not appear at the investigatory interview scheduled for January 8, 2009, and remove all
copies of the e-mail from Willms personnel file.
Dated: --------- COUNTY OF SAN BERNARDINO (OFFICE OF
THE PUBLIC DEFENDER)
By:
Authorized Agent
--------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2