David P. Mastagni Interviewed on KFBK's Kitty O'Neal About AB 748

On October 1, 2018, KBFK broadcaster Kitty O'Neil interviewed David P. Mastagni about AB 748.  Governor Brown signed the bill, which requires public release of video and records relating to critical incident investigations. 

O'Neil asked Mastagni what his concerns were about the new law.  He explained, "My greater concern is that the release itself is going to interfere with every single solitary investigation.  It’s going to cause witnesses to go into hiding. It’s going to jeopardize the safety of witnesses.  Frankly, it’s going to jeopardize the safety of the officers. And it will definitely take a law enforcement function and make it a media ping pong game."

O'Neil continued asking what he thought was behind the creation of the bill.  He explained, "I’ve dealt with the Legislature long enough to know they go by poll barometers and the never do anything based on the philosophic or best interests of society or law enforcement.  It’s always on what their district is like.  I call it promoability.  That public service, Kitty, has just gone from where you had volunteer councilman and people serving out of civic duty and dedication to career advancement and therefore you take positions that will encourage your constituency in your local district then you take them that will encourage your nomination ability in bigger, more statewide elections and I think that it’s all a calculus.  I’m sorry to say I don’t believe that the question of transparency or police-community relations – I think it’s there – but its maybe fifth, sixth, tenth down the line from how will this effect my career."

Listen to the whole interview here.

Appellate Court Upholds Officer’s Five Day Suspension for Inappropriate Facebook Comments

In a recent unpublished decision, a police officers’ five day suspension for posting an off-duty Facebook comment regarding a matter of public concern was upheld. The case serves as an important reminder of the limited First Amendment rights afforded public employees and that public safety officers must always be cautions when utilizing social media.

In Zucker v. City of Los Angeles, LAPD Sergeant Benjamin Zucker contested a written reprimand, as well as, a five-day unpaid suspension for posting a comment on a third party’s Facebook page. His comment lambasted a civil action filed against the LAPD by a female officer claiming gender and religious discrimination.

Zucker’s comment was posted on the Facebook page of fellow Officer Mark Cronin. Officer Cronin’s page provided a link to a news article discussing a recent lawsuit filed against the city of Los Angeles by fellow Officer Victoria DeBellis. In that lawsuit, Officer DeBellis claimed she suffered workplace discrimination based on her gender and religion.

In response to the newspaper link, Zucker commented:

“I was born Jewish, raised Mormon and married to a catholic that is Japanese, Portuguese & German. NOW WHERES MY MONEY?

“Kiss my ass ya greedy house mouse!”

The term “house mouse” in law enforcement nomenclature refers to members of the department not working in the field.

Zucker did not identify himself as LAPD in his comments. Rather, Debellis was able to determine that Zucker was employed by LAPD because his Facebook page showed himself dressed in full uniform. After determining Zucker was an LAPD employee, Debellis filed a personnel complaint against him.

During the disciplinary process, Zucker was found guilty of “conduct unbecoming an officer.” He received an official reprimand and a five-day unpaid suspension. The Department found that Zucker’s Facebook profile showed “a clear nexus to the department” because it displayed a picture of him wearing his LAPD uniform and representing himself as an LAPD sergeant. The Department also concluded that: “Although in an off-duty capacity, he placed himself in a position where his actions were subject to on-duty scrutiny by other department employees, and may have some influence on the outcome of an unresolved litigation.”

Zucker challenged the reprimand and unpaid suspension in court. Specifically, he argued the imposed discipline violated his First Amendment rights because he was a citizen speaking on a matter of public concern—i.e. civil litigation/a news story. Moreover, he claimed that there was no nexus between his speech and his role in the department.

Applying the Garcetti v. Ceballos standard established by the Supreme Court, the Appellate Court made two crucial inquiries. First, it determined whether Zucker “spoke as a citizen on a matter of public concern.” However, it determined if the LAPD “had an adequate justification for treating [Zucker] differently from any other member of the general public.”

In a significant setback for the Constitutional rights of police officers, the court held the agency's interest avoiding Zuckers’s potentially disruptive Facebook comment outweighed his First Amendment rights. Though the court conceded his speech, i.e. commenting on a news article, involved a matter of public concern, it refused to afford him First Amendment protections largely because it also included a derogatory statement directed at Debellis.  The potential disruptiveness of this derogatory statement was adequate justification for treating Zucker different from any other member of the general public.

The Court highlighted that Zucker made the comments on Cronin’s Facebook profile—arguably knowing other LAPD employees would review the post. In fact, the Court specifically noted that Debellis actually saw Zucker’s comment and then filed a personnel complaint against him only after determining he was an LAPD employee. Accordingly, her complaint about his derogatory statement proved that Zucker’s comment “impaired harmony among co-workers and caused potential disruption to department operations.” For that reason, the Court concluded Zucker’s Facebook comment was not protected by the First Amendment and upheld Zucker’s suspension.

 

Interestingly, the appellate decision did not address whether the communications were protected under the MMBA as concerted actions. In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB overturned the discipline of five employees and found that the employees’ Facebook postings criticizing one of their co-workers was protected, concerted activity and that their discipline constituted retaliation for engaging in the protected activity.  Nevertheless, this surprising decision constitutes a stark warning that public cannot always rely on the First Amendment to protect their social media comments regarding matters of public concern that relate to their employment.  Public employee First Amendment cases are often decided by the factual nuances; had Zucker not referred to Debellis as a house mouse, the court likely would have reached a different conclusion. 

First Appellate District Allows SFPD to Circumvent Govt Code 3304(d) by Disciplining Officer for Acts Committed In December of 2012

On May 5, 2018, the First Appellate District of California issued the now published decision in Daugherty v. City and Countyof San Francisco. This widely publicized case arose out of the criminal investigation of San Francisco Police Department (SFPD) Sergeant Ian Furminger. The United States Attorney’s Office (USAO) conducted this investigation with the assistance of selected members of the criminal unit of SFPD’s Internal Affairs Division (IAD-Crim). The SFPD Internal Affairs Division is separated into two units: IAD-Crim investigates potential criminal conduct by SFPD officers, while disciplinary investigations are handled by IAD-Admin. SFPD imposes a “wall” between these two departments in order to protect evidence in criminal investigations. In the Furminger investigation, the USAO further required confidentiality and required IAD-Crim officers to sign nondisclosure agreements. 

In December 2012, the investigation led to the discovery of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine other SFPD officers. IAD-Crim brought these text messages to the attention of Lieutenant DeFilippo. In order to maintain confidentiality, USAO and the Lieutenant chose not to disclose the text messages to IAD-Admin at this time. On December 5, 2014, a federal jury convicted Furminger. Three days after the final verdict, the USAO lifted the confidentiality restriction and released the text messages to IAD-Admin. IAD-Admin conducted an investigation and issued disciplinary charges against respondents in April 2015.

Rain O. Daugherty filed a writ of mandate seeking to rescind the disciplinary charges on the grounds that they were untimely and in violation of the Public Safety Officers Procedural Bill of Rights (“POBRA”). Under POBRA, no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of the “of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omissions, or other misconduct,” subject to certain statutory exceptions. One such exception provides that the one year time period is tolled while the act, omission, or other alleged misconduct is also the “subject” of a pending criminal investigation or prosecution.

The City of San Francisco argued that Lieutenant DeFilippo was not a “person authorized to initiate an investigation” because it is SFPD’s policy that only IAD-Admin was authorized to initiate disciplinary investigations of SFPD officers. Accordingly, the City argued that the statute did not accrue until the text messages were released to IAD-Admin in December 2014. 

In ruling for the City, the Appellate court stated that the details for implementing various provisions of POBRA are to be formulated by the agency itself. Based on this principle, the court held that law enforcement agencies have latitude to designate “a person authorized to initiate an investigation” and courts should apply the agency’s designation in determining when the limitations period begins to run. Applying SFPD’s designation, the court determined the statute of limitations did not begin to accrue until December 2014, when the text messages were turned over to IAD-Admin.  The Court also found that the one-year statute of limitations was tolled during the criminal investigation because “tolling applies to any conduct with a clear connection to the criminal investigation.” 

Although other courts have supported a more expansive view "person[s] authorized to initiate an investigation", this Opinion undermines the legislative intent of 3304(d) to provide peace officers a speedy adjudications of disciplinary actions by inviting agencies to narrowly define those authorized to initiate investigations.  Under Daugherty, high ranking police managers can avoid their duty to act promptly upon being informed of alleged misconduct.  As job security and disciplinary appeal rights remain squarely within the scope of representation, labor representatives should demand to meet and confer over any proposed policy changes narrowing the persons authorized to initiate investigations. 

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.  

Court Upholds Officer's Right to Administrative Appeal of Termination

In 2008, a citizen filed a complaint against San Francisco police officer Morgado. The office of citizen complaints investigated and recommended the Chief impose discipline. The Chief agreed and submitted a complaint against the officer to the City’s police commission. After a full evidentiary hearing which the officer participated in, the Commission decided to impose termination. The officer sued the City in Morgado v. City and County of San Francisco alleging that the City violated the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”) by failing to give him an administrative appeal of the final termination. The trial court agreed with the officer and issued an injunction vacating the termination until he had been provided the opportunity for an administrative appeal of the termination decision. The City appealed.

On appeal, the City argued that the evidentiary hearing at the Commission level effectively served as an administrative appeal of the Chief’s decision to discipline. By providing this evidentiary hearing, the City argued it fulfilled the purposes of the administrative appeal provision of POBR. The Court found a distinction between the Chief’s decision to recommend discipline and the termination actually imposed by the commission. The Court found that while there may be a right for an administrative appeal of an interim-step towards discipline, such as the Chief’s recommendation, ultimately this was not the relevant issue in this case.

The issue here was the ability to appeal the “final” imposition of discipline by the Commission. While the Commission’s evidentiary hearing fulfilled most of the purposes of an administrative appeal, the Commission’s processes ended when it made the final determination to impose discipline. The Court ruled the City should have provided an additional opportunity for independent re-examination of the imposition of termination. The Court stated that such an administrative appeal does not require the same full-scale evidentiary hearing, but merely the re-examination by someone not involved in the initial determination who will make written factual findings.

The City argued alternatively that the administrative appeal provision of POBR was unconstitutional because it restricted the constitutionally granted “plenary authority” of the City over the removal of its officers. The Court found no constitutional conflict, noting POBR constituted only a slight impingement. POBR did not proscribe reasons an officer could be terminated, rather it sets forth minimal procedural rights. The court upheld the Constitutionality of  POBR finding it was narrowly tailored to the purpose of promoting labor relations and created no substantive restrictions on the City’s ability to terminate employees. The Court of Appeal upheld the injunction and affirmed the trial court’s decision.

CalPERS Changes Eligibility Rules for Industrial Disability Retirement

The California Public Employees’ Retirement System (CalPERS) posted Circular Letter 200-018-17 on March 30, 2017. Among other things, this Letter addresses changes to the eligibility determinations for certain local safety members applying for industrial disability retirement. 


In the past, CalPERS relied on the employer’s recommendation to verify eligibility of any member for industrial disability retirement. However, CalPERS will now independently evaluate whether certain members are eligible. The employer must obtain CalPERS’ determination of a member’s eligibility to apply for disability retirement before the employer starts the process of a disability determination for any of the following circumstances:

• Disciplinary process underway prior to the member’s separation from employment.

• The member was terminated for cause.

• The member resigned in lieu of termination.

• The member signed an agreement to waive his or her reinstatement right as part of a legal settlement (i.e., Employment Reinstatement Waiver).

• The member has been convicted of or is being investigated for a work-related felony.

The Letter also imposes a requirement for local agencies to re-evaluate eligibility determinations for disability retirees under the voluntary service retirement age. The purpose is to verify whether the recipient remains physically or mentally disabled from the position which they disability retired for the condition(s) that they were approved for.

The Letter requires employers to provide all relevant personnel documents and medical records to CalPERS. This information will be used to conduct the second evaluation of a member’s medical incapacity and employment status.  However, providing such information to CalPERS creates a conflict for safety employers. For example, Penal Code section 832.7 prohibits employers from disclosing peace officer personnel records without the peace officer’s written consent or a Pitchess motion. Employers are also prohibited from disclosing medical information without written authorization from the employee.

California Appeals Court Holds That Public Speech Protection Law Cannot Be Used To Stifle Suit Against County

In a victory for public employees, a California court of appeals shut down an attempt by the County to strike a sheriff's deputy's lawsuit against the county alleging that they retaliated against him for asserting his privacy rights in his medical record. While this case is unpublished and therefore not controlling authority, it signals a warning to employees who might attempt to use California's anti-SLAPP rules to strike down lawsuits asserting MMBA and POBR violations.

By way of background, California's "anti-SLAPP" or anti-Strategic Lawsuits Against Public Participation is a civil code section used to punish those who bring lawsuits which are intended to stop or retaliate against speech made during "official proceedings." The idea behind anti-SLAPP is to prevent persons from stifling protected free speech by filing a lawsuit. However, public employers often attempt to classify their disciplinary proceedings as "official proceedings" and their recommendations for discipline as "protected speech." While this is a perversion of the spirit and purpose of the law, that does not stop management from trying to use it.

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2016) Second District Court of Appeal, Case No: B260584, A deputy injured himself at work and became addicted to pain killers for two years. He later entered a drug dependency treatment program and returned to full duty. After a later back surgery he again obtained pain medications from several different physicians. At some point, an unknown person from the Sheriff's Department accessed his record of prescriptions in the database and saw that he had several prescriptions from different doctors. The Deputy then discarded all of his medications.

The Deputy was meeting all of his performance requirements, but shortly after the unauthorized access, as many as six supervisors asked to get consent to access his prescription information in the database. They also asked him to voluntarily submit to a psychological fitness for duty evaluation. The County Occupational Health Department requested that he submit to a fitness for duty examination given his refusal to provide access to his prescription record. When he met with the psychologist, the doctor refused to do an exam unless he provided his medical records. The deputy was then ordered to take a medical leave of absence and was refused the opportunity to return to work. 

 
The Association sued alleging, among other things, violation of privacy rights and retaliation for asserting his privacy rights. The County moved to strike all claims on anti-SLAPP grounds arguing that the referral of the plaintiff to Occupational Health was protected speech and the process by which the County required the Plaintiff to submit to a fitness for duty test was an official proceeding for purposes of SLAPP. The trial court agreed and ordered the Plaintiff to pay the defendant’s costs of suit.

The appellate court noted that the meaning of "official proceeding" continues to elude definitive judicial interpretation, but should generally be limited to proceedings of a public nature and that this case was likely an internal matter, not a public proceeding. However, the appellate court did not need to reach that question because the claims in this case did not arise out of that process anyway. SLAPP case law draws a distinction between speech made in connection with an official proceeding, and the decision made because of that proceeding. The thrust of plaintiff’s arguments stemmed from the decisions made by the Department after the proceeding, not from the statements themselves. Thus, SLAPP was inapplicable here.

Court Holds Punitive Transfer Does Not Require Administrative Appeal

In Perez v. City of Westminster, the Court of Appeal held that even if an officer is accused of misconduct by his department, loses overtime opportunities, is transferred from SWAT and honor guard, not assigned trainees despite being a FTO, does not get to appeal  his discipline.  The Court relied on a strained interpretation of "punitive" action, chipping away at POBR rights and the well-established right to a White hearing.  The decision creates a conflict in the courts that will likely have to be resolved by the Supreme Court.

Internal affairs interviewed Officer Perez regarding a citizen complaint of excessive force during an arrest. The complainant claimed another Westminster officer had hit him in the face. Perez stated that he did not see this happen. The investigators told Perez the video and other officers’ testimony suggested Perez did see it. Perez reaffirmed he did not see the alleged excessive force.

Then, the City served Perez with a Notice of Intent to fire him. After a Skelly hearing, the Chief of Police reversed the findings based on insufficient evidence to sustain them. However, the Chief removed Perez from the SWAT team and honor guard. In addition, he refused to assign Perez and trainees in the FTO program and Perez lost significant overtime opportunities.

Perez argued the transfer from SWAT and loss of overtime opportunities was “punitive action” under POBR and that he should get to appeal. At trial, the Chief testified he removed Perez from the SWAT team because he had "lost confidence" in Perez’s honesty and ability to work cooperatively with others. He also testified Perez was removed from the honor guard because he thought there “was compelling information he had not been truthful” in the investigation. Ultimately, the Chief admitted his “lack of confidence” stemmed from the interval affairs investigation that he was unable to sustain, but denied Perez the right to appeal and have a neutral person decide. 

However, the court held that the loss of overtime and prestige did not render the transfers punitive, and that the Chief’s testimony showed the transfer was not “punitive,” but based on his lack of confidence in Perez.

This decision chips away at POBR rights long-established since White v. Sacramento.  In 1982, the California Supreme Court held that it violated POBR to transfer an officer to a lower paid position without giving them an opportunity to rebut the allegations against them.  The Court emphasized why POBR and the right to appeal are so important, noting "Erroneous action can only foster disharmony, adversely affect discipline and morale in the workplace, and, thus, ultimately impair employer-employee relations and the effectiveness of law enforcement services."  David P. Mastagni represented Dep. White.

But here, the Court of Appeal permitted a Department to discipline an officer based only on the Chief's personal hunch and without any right to appeal.  As a result, it is likely the Supreme Court will have to resolve the conflict.    

Officers Are Entitled To Reasonable Prior Notice Of The Subject Matter Of An Interrogation

The Second District Court of Appeal recently ruled in Ellins v. City of Sierra Madre (Jan. 28, 2016) that public safety officers must be given notice of the specific subject matter of an investigation "reasonably prior to" an interrogation so that they have sufficient time to consult with a representative.

Officer John Ellins allegedly used the CLETS database to do unofficial searches of his ex-girlfriend. The Sierra Madre Police Department opened an investigation into Ellins' conduct after receiving a tip from the ex-girlfriend. The Department gave a vague notice to Ellins that it was investigating "an alleged abuse of your peace officer powers and duties." Minutes before the interrogation was to begin, the Department told Ellins the specific allegations. The Department then gave Ellins an hour to consult with his attorney representative.

POBR provides that an officer under investigation "shall be informed of the nature of the investigation prior to any interrogation." (Gov. Code, sec. 3303(c).) The Court of Appeal held this means “'reasonably prior to' the interrogation—that is, with enough time for the officer to meaningfully consult with any representative he elects to have present."

The Court rejected the Department's argument that notice can be given only minutes before an interrogation.  But the Court declined to set a hard rule about how far in advance notice must be given.  it stated the amount of time will depend on the circumstances, including whether the officer needs time to obtain a representative, the complexity of the allegations, the number of unrelated allegations, and any risk the officer will retaliate against persons involved in the investigation or will destroy evidence.

The Court explained notice allows officers to prepare for the interrogation and identify justifications, explanations, extenuating circumstances, and other mitigating factors. If an officer is not given adequate prior notice of the subject matter of the interview and time to consult with his representative, he cannot get effective help and protection from his representative.

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.

Governor Signs Bill Setting Standards for Use of Police Body Cameras

On October 3rd, Governor Jerry Brown signed into law Assembly Bill 69 by Assemblyman Freddie Rodriguez (D-Pomona).  Law enforcement agencies requiring their officers to wear body cameras must now comply with a uniform set of standards.

Currently there is no state requirement that law enforcement agencies adopt body cameras for their officers in the field. However, many local agencies have either adopted such a policy or are likely to do so in the near future. AB 69 is meant to prevent the development of a patchwork quilt of rules across the state. It sets statewide standards for the use of police body cameras.

In November 2014 a study by the U.S. Department of Justice titled, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” recommended standards be adopted for the use of body cameras. AB 69 seeks to implement those recommendations by requiring:

• Agency procedures on data collection and storage must follow “best practices”;
• Agency rules must explicitly prohibit agency personnel from accessing recorded data for any unauthorized or personal use, and from uploading recorded data onto the Internet;
•  Agency rules must provide sanctions for unauthorized access or use of recorded data;
• Supervisors must immediately take custody of officers’ cameras after a use of force incident or officer involved shooting, and must be responsible for downloading the data;
• Data must be categorized according to the type of event recorded;
• “Non-evidentiary” data (data that does not necessarily have value to aid in an investigation or prosecution) must be retained for a minimum of 60 days;
• “Evidentiary” data must be retained for a minimum of 2 years (and longer if relevant to a criminal prosecution) in any of the following situations:
• Use of force incident or officer involved shooting;
• Detention or arrest of an individual;
• Formal or informal complaint against the officer or agency.

• Logs of access and data deletion must be retained permanently;
• Third party vendors used for data storage must be reputable and have procedures in place to prevent tampering, provide for automatic data backup, and meet legal requirements for chain-of-custody concerns.

Law enforcement agencies will need to update their policies on body cameras to conform to these new requirements. Peace officer associations should make sure their members are made aware of all rules about body cameras and recorded data to prevent any causes for discipline. Also, associations should negotiate with agencies about an officer’s right to view data recorded from body cameras, which is not addressed by AB 69 but raises POBR concerns.

AB 69 faced almost no opposition as it moved through the Legislature, receiving only one “no” vote and receiving no public opposition. It goes into effect January 1, 2016.

California Court of Appeals Limits Use of Secret Recordings in Administrative Investigations

In Telish v. State Personnel Board the California Court of Appeal clarified when an employer may use secret recordings. It is against the law for an employer to secretly record its employees. An employer may secretly record its employees if it is investigating a crime. But an employer may not fake a criminal investigation in order to secretly record its employees.

A police chief reported suspected criminal behavior by a DOJ employee to the the DOJ. The DOJ began a criminal investigation of Telish’s conduct. As part of that investigation, the DOJ asked the woman to record telephone conversations with Telish. These recordings were made without Telish’s consent.

The DOJ completed its investigation and submitted its findings to the Orange County District Attorney. The district attorney declined to prosecute. But the DOJ fired the employee because he violated company rules. The DOJ relied on the secret tape recordings to fire employee. The employee sued the DOJ saying the recordings violated California statutes.

The California Court of Appeal for the Second District upheld the termination. California Penal Code section 632 states one cannot secretly record someone. California Penal Code section 633 provides an exception to this rule. A law enforcement agency may record someone without their consent if the recording is part of a criminal investigation. Furthermore, a law enforcement agency may direct a private citizen to make the recording. Here, the accuser recorded the employee as part of a criminal investigation. Thus, the Court of Appeal ruled the recordings were appropriate under the exception in California Penal Codesection 633.

The employee argued the statutes prevented the use of the recordings in an administrative termination. The Court of Appeal did not agree. Nothing in the statutes prevents the employer from using a recording made as part of a legitimate criminal investigation in an administrative investigation. Here, the DOJ investigation originally focused on criminal activities. Therefore, when made, the recordings were pursuant to a valid criminal investigation. Thus, California Penal Code section 633 applies and the recordings may be used as part of an administrative investigation.

An employer may not lie and label an investigation “criminal” in order to secretly record its employees. There must be real facts that demonstrate an on-going criminal investigation. The recording must be made pursuant to that investigation.

Court of Appeal Denies Administrative Appeal for Officers' Involuntary Transfers

On December 9, 2014, the California Court of Appeal held the Public Safety Officers' Procedural Bill of Rights Act ("POBR") does not afford officers the right to an administrative appeal of a transfer of assignment solely because the transfer may lead to negative employment consequences. In Los Angeles Police Protective League v. City of Los Angeles, the Court of Appeal denied two peace officers an administrative appeal for their involuntary transfers of assignments.

In City of Los Angeles, two officers were involuntarily transferred to different assignments. The City based one transfer on the officer's negative performance in the areas of counseling, communication, and management skills toward subordinate employees. The City transferred another officer because a discipline investigation supposedly damaged the officer's relationships with his coworkers. The City claimed his transfer provided an opportunity for a "fresh start with new coworkers."

POBR affords officers an opportunity for administrative appeal of "transfers for purposes of punishment." The officers alleged their transfers were punitive. As evidence, one officer asserted that the transfer would not allow her to work as many overtime hours and she would lose her department-issued take-home vehicle. The other officer showed he was placed on restrictive duty status, which prohibited him from carrying a gun, and the transfer damaged his reputation. Both officers asserted the transfers would adversely affect their opportunities for promotion in the department.

The court held the transfers were not punitive and the officers were not entitled to an administrative appeal. The court held the loss of possible overtime did not result in a "reduction of salary" because the officers were not entitled to particular amount of overtime and it varied depending on departmental needs. The court also found officers were not entitled to take-home vehicles, and it did not result in any reduction of salary. In addition, the City presented evidence that involuntary transfers would not hurt the officers' chances of promotion. This is an unfortunate case for peace officer's appeal rights.

California Supreme Court: Arbitrators May Rule On Pitchess Motions

On December 1, 2014, the California Supreme Court held arbitrators may rule on Pitchess motions during peace officer administrative appeals. The court's decision in Riverside County Sheriff's Department v. Stiglitz ensures peace officers can get information to defend discipline cases.

In Stiglitz, the Riverside County Sheriff's Department terminated a deputy for allegations of falsifying payroll forms. The deputy appealed the discipline to arbitration. The deputy intended to assert a disparate treatment defense, arguing others had committed similar misconduct but were not fired. To prove this defense, the deputy sought redacted records "from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct." She limited her request to events during the previous five years, and only sought incident summaries, the rank of the officer, and the discipline imposed. The department objected, arguing in part that the requested information was confidential and the arbitrator lacked authority to rule on Pitchess motions.

The court held arbitrators have the authority to grant Pitchess motions. Evidence Code section 1043 states the motion should be filed in the appropriate court "or administrative body." The court held this language specifically grants arbitrators the authority to rule on the Pitchess motions because otherwise, the Legislature would have authorized filing a motion in a body not authorized to rule on it. The court also noted the Legislature did not provide a mechanism to transfer a motion from an administrative proceeding to superior court. The absence of such a mechanism showed the Legislature's intent for arbitrators to make such rulings.

The court also held its conclusion is consistent with the purposes behind the Pitchess statutes and the Public Safety Officer Procedural Bill of Rights Act ("POBRA"). The Pitchess statutes reflect the Legislature's attempt to balance a litigant's discovery interest with an officer's confidentiality interest. These interests must be balanced whether the motion is filed before a court or an administrative hearing officer. Also, POBRA grants officers the right to administratively appeal an adverse employment decision and give the officer an opportunity to convince the agency to reverse its decision. Allowing discovery of relevant information to an officer's defense during the administrative hearing furthers these goals.

Court of Appeal Enforces One-Year Discipline Limitations Period Even Though Officer's Identity Unknown

On August 25, 2014, the California Court of Appeal issued a decision in Pedro v. City of Los Angeles. The court held the department's ignorance of an accused officer's identity does not delay the one-year statute of limitations for disciplinary actions.

In Pedro, a man alleged an officer conducted private business on two occasions. He also alleged the officer treated him discourteously. The department charged the officer with using a city vehicle to inappropriately transport a member of the public, discourteous treatment of the public, and making a misleading statement to a supervisor. The department temporarily relieved the officer from duty more than a year after the man complained to the department.

The court granted the officer's writ of mandate challenging the allegations. The court found the allegations were time-barred. Under the Peace Officer Procedural Bill of Rights Act, the one-year period begins to run when a person authorized to initiate an investigation discovers, or with reasonable diligence should have discovered, an allegation of misconduct. The court ruled the limitations period for the allegations of misusing a city vehicle and discourteous treatment began when the man complained to the department. Although the officer was not identified as the subject of the complaint until a later date, the court held the department could have discovered the officer's identity with reasonable diligence. The court also held the limitations period for the misleading statement began when the officer made the statement, not when the department determined the statement was misleading.

Court of Appeal Finds Department May Have Unlawfully Terminated Officers

On March 20, 2014, the California Court of Appeal found the Orange County Sheriff's Department may have violated officers' POBR rights when it failed to provide a pre-termination hearing after a potentially pre-textual layoff.

The officers were "laid off" from their positions at the Sheriff's Department after the Department re-organized to cut spending.  The officers received a formal termination letter stating the Department faced economic difficulties and the lay-offs were not based on performance.  However, the officers suspected their terminations had to do with their past disciplinary records.  The termination letter informed the officers they were entitled to a "Liberty Interest Hearing" if they responded within 14 days.  Emails exchanged between the human resources representative and one officer explained the Liberty Interest Hearing would not include any presentation of evidence or witnesses.  None of the officers responded because they didn't believe the non-evidentiary Liberty Interest Hearing would result in reinstatement.

One day after the officers were terminated, the Sheriff held an off-site leadership retreat and showed a PowerPoint presentation.  The PowerPoint included slides suggesting the key to improving the Department was getting the right people "on the bus," and the wrong people "off the bus."  The officers filed a lawsuit claiming they were terminated for punitive reasons, rather than the budgetary reasons asserted by the Department.  They argued the Department's decision to terminate them constituted punitive action without providing them with the opportunity for an administrative appeal.  POBR requires the opportunity to a full evidentiary hearing for officers terminated for punitive reasons. 

The Court recognized POBR requires a full evidentiary hearing when officers are terminated for punitive reasons.  The Court stated a full evidentiary hearing usually includes sworn testimony, cross-examination of witnesses, and presentation of argument by the public agency to which the officer could respond.  Also, the public agency bears the burden of proof.  The process offered by the Department as presented by the human resources representative fell short under POBR.

In addition, the Court stated this case had many of the hallmarks of a pretext case.  Warning signs for a pretext case are layoffs that do not involve massive layoffs based on fixed rules such as seniority, a relatively small number of officers terminated, and when the decision-maker is not bound by seniority rules when choosing whom to terminate.  On these grounds, the Court concluded the trial court erred in dismissing the case.

Supreme Court to Resolve What Counts As a Personnel File

Government Code section 3255 requires employers give firefighters an opportunity to review any adverse comments before they can be placed in the firefighters "personnel file, or any other file used for any personnel purposes by his or her employer."  Likewise, Government Code section 3256.5 give firefighters the right to inspect their files and request corrections.  But, some employers have tried to skirt around the law by making adverse comments in secret files or other places.  Now the California Supreme Court will weigh in on what constitutes a personnel file under FFOBR when it hears the appeal of Poole v. Orange County Fire Authority.

In Poole v. Orange County Fire Authority, the Court of Appeal ruled firefighters have a right under FFBOR to review and respond to personnel comments entered into "daily logs," even though the employer claimed they were not put in the employee's "personnel file."

The case is about a firefighter with the Orange County Fire Authority (OCFA). OFCA keeps personnel files at OFCA's headquarters in Irvine, but a fire captain kept a separate file at the fire station on each of the firefighters he supervised, which he called "daily logs." He used in the preparation of yearly evaluations and did not give firefighters an opportunity to review them before recording them.

When the firefighter found out about the "daily logs," he requested management delete them pursuant to section 3256.5(c).  However, OFCA refused, claiming they were not subject to FFBOR because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.” The Court of Appeal disagreed, noting firefighters should be able to review the daily logs because the purpose of the law is to “facilitate the firefighter’s ability to respond to adverse comments potentially affecting the firefighters employment status.”

The California Supreme Court granted review on February 26, 2014.

POBR, FFBOR Amendments Clarify Witness Right to Representative

On January 17, 2014, the state senate amended Senate Bill 388.  the law would amend the Public Safety Officers Procedural Bill of Rights Act (POBR) and Fire Firefighters Procedural Bill of Rights Act (FFBOR).  Both laws give legal rights to officers and firefighters under investigation or witnesses in an investigation.  According to the Senate Committee Analysis, "SB 388 would specify that a firefighter or peace officer witness may have a representative present when questioned by his or her employer regarding the investigation of another firefighter or peace officer, if that interview may lead to disciplinary action against the witness, as specified."  Senator Ted Lieu introduced the bill.

Court of Appeal: POBR Violation Voids Dishonesty Charge

In Ruiz v. City of Bell Gardens (2013) Case No. B244395, the Court of Appeal affirmed a superior court ruling voiding a dishonesty allegation because of a POBR violation.  Officer Ruiz was on administrative leave pending the outcome of an IA investigation.  When his department put him on administrative leave, it ordered him not to enter any city property not open to the general public.  Then, a lieutenant came across him in police trailer not open to the general public and asked him about why he was there.  The court found that the lieutenant's questions constituted an interrogation under POBR.  Since the department did not give him notice of the interrogation in advance, it violated POBR and Officer Ruiz statements were suppressed.  Without his statements, there was no basis to support the dishonesty allegation.

Governor Vetoes Union Rep-Member Privilege, Signs Bills on Brady List Protections, Bargaining, Release Time

The Governor took action on several bills affecting public safety labor rights.  The Governor vetoed AB 729, which would have protected labor leaders from having to testify about communications with members.  In his veto message, the Governor wrote, "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney.  Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations."  The Governor's veto underscores the importance of connecting employees with a union lawyer on the onset of disciplinary investigations to ensure privileged communications.

The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.

The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list.  The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets.  PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.

The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table.  The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.

The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.