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.
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.
