AG: CHP Can Disclose Brady List to Prosecutors

The California Highway Patrol and other law enforcement agencies are allowed to disclose some Brady information about their officers to prosecutors without a Pitchess motion.

On October 13th the Attorney General issued a legal opinion about the steps prosecutors must take to get Brady material about peace officers.  The Attorney General said CHP could give prosecutors a list of its officers who have been found guilty of dishonesty, moral turpitude, or bias, without a Pitchess motion being filed without violating Pitchess statutes or the Public Safety Officers Procedural Bill of Rights Act (POBRA).

Under the its proposed “External Brady Policy,” CHP would create a list of its officers who have been found guilty of dishonesty, moral turpitude, or bias within the last five years. This list would include the names of officers and the earliest date of any misconduct. But it would not describe the misconduct. Prosecutors could search this Brady list for CHP officers who might be called to testify as witnesses in criminal trials. If a likely witness was on the list, a prosecutor could then file a Pitchess motion to view the officer’s personnel records. Also, an officer whose name was put on the list would be notified and could file an administrative appeal challenging their inclusion on the list. 

The Attorney General noted that several police departments have adopted similar Brady policies and the Supreme Court approved one of these policies in Johnson. So CHP would not violate Pitchess statutes by creating and sharing a Brady list. She also said CHP was part of the prosecution team for Brady purposes, and CHP was qualified to create a Brady list. 

Although the Attorney General’s legal opinion is only advisory and is not binding on local law enforcement agencies, it is has a lot of influence. Officer associations should be aware of their agency’s Brady policy and ensure that the confidentiality of peace officer personnel records is protected. While Brady lists may be created and shared, POBRA and Pitchess procedures must still be followed.

Proposal to Subject Officers in Critical Incidents to Special Prosecutor Fails in the Assembly

AB 86 was 86'd in the Assembly today.  Under the proposed bill, every officer-involved shooting would have to be reviewed by a special prosecutor appointed by the Attorney General.  This review would have been in addition to department and district attorney reviews.  The bill was among several bills that failed to advance through the Assembly Appropriations Committee earlier today.

Court Strikes Down San Jose Mayor Chuck Reed’s Challenge to Attorney General’s Summary of His Pension Reform Act

On March 17, 2014, a Superior Court judge rejected Mayor Chuck Reed’s challenge to the Attorney General’s summary of his “Pension Reform Act of 2014.”  Reed claimed the first sentence of Attorney General Kamala D. Harris’s summary was false, partial, and argumentative.  The Court analyzed the Attorney General’s sentence word-by-word, and found it was not false, misleading, or partial in any way. 

Attorney generals summarize each ballot initiative for voters in 100 words or less.  The summary appears on the initiative petition circulated among voters.  If a minimum number of voters sign the initiative petition, the initiative appears on the ballot.  The summary gives voters a sense of the measure’s purpose without creating prejudice for or against the proposed measure.  Attorney General Kamala D. Harris wrote the title and summary for Reed’s Pension Reform Act.  Reed challenged the first sentence of the summary, which stated:  “Eliminates constitutional protections for vested pension and retiree healthcare benefits for current public employees, including teachers, nurses, and peace officers, for future work performed.” 

First, Reed claimed the word “eliminates” was misleading because the initiative does not repeal or replace any provision of the state Constitution.  The Court agreed the initiative does not eliminate any provision of the state Constitution.  But the summary does not state the initiative eliminates constitutional provisions – the summary states the initiative eliminates constitutional protections.  The Court found the Attorney General’s characterization was accurate. 

Second, Reed argued the phrase “constitutional protections” is false and misleading because the California Rule granting public employees vested pension rights in retirement benefits is not constitutionally based.  The Court replied, “If the California Supreme Court says the California Rule’s protections are constitutionally based, they are.”

Next, Reed ignored California Supreme Court precedent a second time, arguing the word “vested” is false and misleading.  Reed claimed the word “vested” only describes benefits that have already been earned through past service, not benefits earned through future service.  Again, the California Supreme Court has used the term extensively to describe benefits earned through future service.

Finally, Reed challenged the Attorney General identifying “teachers, nurses, and peace officers” as affected public employees.  Reed claimed the Attorney General cherry-picked three very popular job classifications of public employees to discourage voter support.  In fact, those three job classifications make up close to half of all public employees.  The Court found the Attorney General accurately and concisely identified the affected employees for voters.  

The Court's decision marks another blow to Mayor Chuck Reed's initiative, which seeks to eliminate fundamental constitutional protections for California's public employees.