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Calif. Board Approves Firing of State Lawyer Who Spoke Out on Meal Break Laws
The Recorder
November 10, 2008
A California state panel has upheld the firing of Miles Locker, the former state employment lawyer who angered the Gov. Arnold Schwarzenegger administration by questioning its rulings on workplace meal and rest period regulations.
On a 3-2 vote, the State Personnel Board on Monday overturned (.pdf) the decision of an administrative law judge and concluded that Locker's "conduct so undermined the trust essential to the attorney-client relationship that termination is just and proper."
Locker called the decision politically motivated, noting that the ruling majority's members are all Schwarzenegger-appointed Republicans. Locker said he is considering a lawsuit.
Locker, a former attorney in the state Division of Labor Standards Enforcement, has become a hero among organized labor groups and their attorneys for challenging the governor's attempts to ease penalties against employers who violate overtime pay and meal break rules.
Locker made waves on July 20, 2005, when he spoke, in his capacity as a private citizen, to the San Francisco Barristers Club. Locker poked fun at Schwarzenegger's short-lived "emergency" regulations declaring missed meal-break periods a penalty instead of a more costly wage violation.
Then-Labor Commissioner Donna Dell had warned Locker not to speak at the event, citing pending litigation over meal-break compensation. But Locker said he received permission from his supervisor to speak at the event as a private citizen. (In April 2007, the Supreme Court ruled unanimously in Murphy v. Kenneth Cole Productions Inc., 07 C.D.O.S. 3958, that such pay constitutes a wage.)
In February 2006, Locker was fired. Department leaders listed 10 reasons, ranging from inefficiency to insubordination. The Barristers Club speech was listed as were accusations that Locker bad-mouthed department leaders in e-mails and aided private lawyers in their efforts to have meal-break compensation defined as a wage.
In upholding Locker's termination, the majority of Personnel Board members dismissed charges that he had violated any ethical duties to his employer or clients. But his "flippant" and "discourteous" remarks about the governor, labor commissioner and others had irreparably harmed his working relationship with department leaders, they said.
"While it is sometimes difficult in government work to separate politics from policy, it is incumbent on the government attorney to remain professional, regardless of the policy or the politics involved," the majority wrote. Locker "failed to do so. Under these circumstances, it is inconceivable that the department could ever trust [Locker] to serve in its inner circle."
Locker, who is now working as a consultant and expert witness in the private sector, said he was pleased the board's finding dismissed charges that he acted unethically. Locker said that in hindsight he wished he had used more "tempered" language in some of his e-mails but never expected that they would be made public.
As for speaking to the Barristers Club, "I think it's a very sad day when government agencies try to shoot down that free exchange of ideas between practicing attorneys," he said. "This is really something that I believe was protected by the First Amendment."
This summer, majority Democrats in the state Senate refused to confirm Robert Jones as Schwarzenegger's deputy director of the Labor and Workforce Development Agency in part because of concerns over Jones' firing of Locker in 2006. Schwarzenegger then appointed Jones the agency's "deputy secretary special counsel," a position that doesn't require Senate approval.
An agency spokesman declined to comment on the Personnel Board's ruling.
On a 3-2 vote, the State Personnel Board on Monday overturned (.pdf) the decision of an administrative law judge and concluded that Locker's "conduct so undermined the trust essential to the attorney-client relationship that termination is just and proper."
Locker called the decision politically motivated, noting that the ruling majority's members are all Schwarzenegger-appointed Republicans. Locker said he is considering a lawsuit.
Locker, a former attorney in the state Division of Labor Standards Enforcement, has become a hero among organized labor groups and their attorneys for challenging the governor's attempts to ease penalties against employers who violate overtime pay and meal break rules.
Locker made waves on July 20, 2005, when he spoke, in his capacity as a private citizen, to the San Francisco Barristers Club. Locker poked fun at Schwarzenegger's short-lived "emergency" regulations declaring missed meal-break periods a penalty instead of a more costly wage violation.
Then-Labor Commissioner Donna Dell had warned Locker not to speak at the event, citing pending litigation over meal-break compensation. But Locker said he received permission from his supervisor to speak at the event as a private citizen. (In April 2007, the Supreme Court ruled unanimously in Murphy v. Kenneth Cole Productions Inc., 07 C.D.O.S. 3958, that such pay constitutes a wage.)
In February 2006, Locker was fired. Department leaders listed 10 reasons, ranging from inefficiency to insubordination. The Barristers Club speech was listed as were accusations that Locker bad-mouthed department leaders in e-mails and aided private lawyers in their efforts to have meal-break compensation defined as a wage.
In upholding Locker's termination, the majority of Personnel Board members dismissed charges that he had violated any ethical duties to his employer or clients. But his "flippant" and "discourteous" remarks about the governor, labor commissioner and others had irreparably harmed his working relationship with department leaders, they said.
"While it is sometimes difficult in government work to separate politics from policy, it is incumbent on the government attorney to remain professional, regardless of the policy or the politics involved," the majority wrote. Locker "failed to do so. Under these circumstances, it is inconceivable that the department could ever trust [Locker] to serve in its inner circle."
Locker, who is now working as a consultant and expert witness in the private sector, said he was pleased the board's finding dismissed charges that he acted unethically. Locker said that in hindsight he wished he had used more "tempered" language in some of his e-mails but never expected that they would be made public.
As for speaking to the Barristers Club, "I think it's a very sad day when government agencies try to shoot down that free exchange of ideas between practicing attorneys," he said. "This is really something that I believe was protected by the First Amendment."
This summer, majority Democrats in the state Senate refused to confirm Robert Jones as Schwarzenegger's deputy director of the Labor and Workforce Development Agency in part because of concerns over Jones' firing of Locker in 2006. Schwarzenegger then appointed Jones the agency's "deputy secretary special counsel," a position that doesn't require Senate approval.
An agency spokesman declined to comment on the Personnel Board's ruling.
