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.

Court of Appeal Re-Affirms Standard for Public Safety Officers’ Industrial Disability Retirement

Public safety officers face the threat of work-related injury every day. Many officers are forced to seek industrial disability retirement if work-related injuries prevent them from performing the required tasks of their positions. Recently, the Court of Appeal recently re-affirmed the legal standard used to determine qualification for industrial disability retirement in Beckley v. Board of Administration of California Public Employees’ Retirement System (CalPERS).

In Beckley, CalPERS deviated from the legal standard when it denied California Highway Patrol Officer Perry Beckley’s application for industrial disability retirement. CalPERS measured Beckley’s application for disability retirement against his usual duties as a Public Affairs Officer, rather than the “14 critical tasks” required of all CHP officers. But the Court of Appeal held an officer’s application for disability retirement must be measured against the officer’s job classification, not the officer’s last job assignment.

CHP has “14 critical tasks” an officer must be able to carry out to perform his or her duties. In 2006, doctors concluded Beckley's injuries prevented him performing the “14 critical tasks”. These tasks include safely extracting a 200-pound victim from a vehicle and lift, carry, and drag the victim 50 feet; physically subdue and handcuff a combative subject; change a flat tire; drive for extended periods of time; and run up and down stairs. Beckley applied for industrial disability retirement, but CalPERS denied his application. CalPERS measured Beckley’s application against his usual duties as a Public Affairs Officer, rather than against the “14 critical tasks”. 

The Court of Appeal found CalPERS applied the wrong standard for two reasons. First, the Court said “[t]ying an applicant’s entitlement to disability retirement to his last specific assignment would tend to lead to highly inconsistent results for persons in identical job categories who suffer from identical disabilities.” Second, California law requires a CHP officer to be able to perform the full range of duties of the position, and does not allow permanent limited duty positions. Thus, the Court ruled CalPERS had to honor the officer's disability retirement application.

State Senate Supports Appeal Rights for Probationary CHP Officers

Like most public employees, California Highway Patrol officers serve a six-month probationary period when they enter civil service.  During the probationary period, they can be terminated without the right to appeal.  On March 29, 2011, the California State Senate unanimously adopted Senate Bill 318 to give probationary officers the right to appeal to the State Personnel Board ("SPB").  If the bill is approved by the Assembly and Governor, the SPB could rescind or modify such terminations.  The full text of the bill is below.

- Senate Bill 318 -