Friday, May 18, 2018

POBRA Entitles Peace Officers to Investigation Notes and Source Materials

A recently published Appellate Court case clarifies that Section 3303 of POBRA requires public employers to disclose original source materials placed within final investigative reports prior to Skelly hearings.  

In James Davis v. County of Fresno, a supervising juvenile correctional officer was terminated. Prior to his termination, James Davis was served with a Notice of Intent to terminate, as well as, a packet of information containing an Internal Affairs Report and a 2012 Memo. Both the IA report and the 2012 Memo referenced certain attachments. The attachments were not provided to Davis.   

On appeal, Davis alleged the County’s failure to produce those documents violated his procedural due process rights that apply before his Skelly hearing.  In addition, Davis alleged the failure to produce the requested documents violated his rights under POBRA, Government Code section 3303 (g), which states a peace officer is entitled to “any reports and complaints.”

The court held materials delivered prior to Davis's Skelly hearing satisfied the requirements of due process applicable before disciplinary action was imposed, but that the County violated Davis's right under POBRA to receive “any reports or complaints made by investigators or other persons.”

The court analyzed the facts under Gilbert v. Sunnyvale (2005), stating the materials provided to Davis were only required to 1) adequately explain the employer’s evidence, and; 2) provide notice of the substance of the evidence so that Davis could adequately respond at the Skelly hearing.  However, the Court suggested that Davis might have been able to carry his burden by demonstrating how his response at the Skelly hearing would be hindered by the absence of the attachments, but David never made this demonstration and the Court held Davis’s pre-removal safeguards under due process were not violated.

However, the Court interpreted the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum that was authored/prepared by a special probation investigator. The Court specifically appealed to POBRA’s legislative intent that providing officers with a copy of the attachments to an investigative memorandum helps assure the integrity of the report because the officer will be able to check the source documents to determine if they are accurately described in the memorandum. Thus, interpreting the term “report” to include attachments furthers POBRA's purpose of promoting stability, integrity and public confidence in law enforcement.

This case illustrates the importance of serving disciplinary discovery requests under multiple statutory and Constitutional grounds.  Generally, public safety union members have due process discovery rights under Skelly, the MMBA, and the POBR/FFBOR.  Had Davis only requested the information under Skelly he would not have prevailed. Discovery of source materials and investigative notes are often critical in refuting the conclusions and summaries contained in disciplinary investigations.