On April 26, David E. Mastagni testified in front of the Senate Public Safety Committee in opposition of S.B. 1088. The Bill is modeled after recommendations to weaken peace officer due process rights issued by Ronald Yank and Barry Winograd, David's Labor Law professor at U.C. Berkeley School of Law. In essence, SB 1088 would create a balancing testing which would deny officers a remedy for POBR violations if the seriousness of the allegations outweighs the significance of the POBR violation. David pointed out that most POBR remedies are simply to exclude improperly obtained evidence or provide officers access to improperly withheld materials. Ironically, the Bill would incentivize IA investigators to cut corners and violate procedural rights by eliminating agency accountability.
SB 1088 Background
SB 1088 was introduced by Senator Bradford and is an act to add Section 3309.6 to the Government Code which relates to public employment and law enforcement labor relations. The bill provides:
3309.6. (a) A procedural violation of this chapter that an administrative hearing officer, board, or arbitrator, acting pursuant to their appropriate authority, deems to be without a substantive effect shall not be the basis for reversing or modifying discipline of a public safety officer.
(b) For purposes of this section, “without a substantive effect” includes, but is not limited to, the following:
(1) Procedural errors, including the admission or exclusion of evidence, unless the error adversely affects the substantial rights of the public safety officer to an extent that constitutes fundamental unfairness.
(2) Harmless errors, including technical errors, that are not so damaging and prejudicial as to change the outcome of an investigation or a decision.
(3) With consideration of the totality of the dispute, evidence of misconduct is significant enough to outweigh a claim that an error was substantial enough to justify a change in discipline.
April 26, 2022, Senate Testimony
Senator Bradford introduced the bill, stating existing law, the Public Safety Officers Procedural Bill of Rights Act, grants a variety of employment rights and protections to public safety officers, as defined, including with respect to investigations, interrogations, and disciplinary procedures. "This bill would prohibit a procedural violation of the act deemed to be without substantive effect, as specified, from being the basis for reversing or modifying discipline of a public safety officer," Bradford explains.
Former police union lawyer Ron Yank and U.C. Berkeley Labor Law professor and arbitrator Barry Winograd testified in favor of S.B. 1088, which was modeled after their recommendations for curtailing POBR rights. Both are members of the Law Enforcement Study Group. They co-authored a California Law Review in August of 2020 titled "Reforming Law Enforcement Labor Labor Relations", containing a host of infringements on officers' labor rights.
Ronald Yank testified, “When a peace officer gets off on a technicality it looks horrible to the public. After George Floyd and other atrocious incidents there was a back lash against arbitration … and when an officer gets off on a technicality it looks like holy heck to the public.” Yank focused his criticisms on the statute of limitations in POBR. Ironically, the statute of limitations, which runs one year from when an agency receives a citizen complaint, actually promotes accountability by forcing agencies to complete investigations rather than allowing unresolved allegations of misconduct to linger indefinitely.
Similarly, Barry Winograd, an arbitrator and mediator, testified that "after George Floyd was killed we thought what could we do." Referring to S.B. 1088 as a harmless error bill, he thanked Senator Bradford for giving consideration to their proposal. He stated the Bill would "fill the gap" in enforcement when POBR is presented in arbitration by barring reinstatement for procedural violations where there is no loss of a substantial right and prevents "burying wrongdoing", i.e. excluding improperly obtained evidence, behind procedural technicalities.
In his testimony, David E. Mastagni refuted the claim POBR allows officers to get away with misconduct on a technicality and provided a more accurate picture of what POBR does. He explained that POBR primarily provides procedural rights during an investigation that
mirror union rights, e.g. notice, right to a representative, and the
right to record, access to documents, etc. He explained that the existing remedies are already limited
primarily to suppression of ill-gotten statements/evidence (i.e. the exclusionary rule) and access to exculpatory materials wrongfully withheld by the investigators. He described prior PORB cases where the court suppressed improperly obtained statements but otherwise allowed the cases to proceed, and a published case, Sacramento POA v. Venegas, in which he won access to negative comments in an officers' personnel file.
He explained that SB 1088 is unnecessary because the Supreme Court already established that its an abuse of discretion to overturn discipline or even suppress an officer’s statement over a minor violation of the POBR. Williams v. City of Los Angeles (1988) 47 Cal.3d 195. The Court applied a “but for” analysis when considering the violation, ie would the agency reach the same decision without the violation. The court also held that even suppression is not appropriate when the officer whose right was violated was not prejudiced, but suppression could be an appropriate remedy in some cases as an effective deterrent.
David explained, SB 1088 goes much further than Williams by prevent a trier of fact from remedying POBR violations whenever evidence of misconduct is significant enough to outweigh a claim that an error was substantial enough to justify a change in discipline.” Williams looked at the effect of violation, not a balancing of the significance of the misconduct against the magnitude of the POBR violation. The balancing is new and would create a perverse “ends justify the means” incentive for investigators that would be unacceptable in any other context. No one would support allowing police investigators to violate Miranda or 4th Amendment rights just because investigators believed a suspect committed a serious crime.
The more serious the matter,
the more important it is for investigators follow the rules and afford people
their rights. He stated, "The more serious the matter,
the more important it is for investigators follow the rules and afford people
their rights. This bill goes too far."
Eliminating the trier of facts ability to exclude improper evidence will
incentivize interrogation violations by eliminating agency accountability. "We should not be encouraging any law
enforcement investigators to cut corners and violate rights in any
context. The
Legislature should foster a police culture of respecting people’s rights."
Finally, David addressed Senator Bradford directly, pointing out he already enacted SB 2 to decertify officers found to have committed serious misconduct and SB 2 does not afford officers any POBR rights. As such, POBR should not be diluted with a balancing test.
Watch entire hearing over SB 1088 below:
