CSLEA Profiles Member Sal Martinez's Legal Defense Fund Victory

Sal Martinez is an ABC agent.  He is a member of the California State Law Enforcement Association and participates in CSLEA's Legal Defense Fund.  On February 1, 2016, Martinez was the victim of an off-duty, possible hit and run vehicle accident.  Despite acting as most peace officers would under the circumstances, he was charged with violating PC 245(a)(2) and 417(a)(2) (brandishing).  After a grueling 18 months, he was acquitted and won his job back.  Now, CSLEA's Legal Defense Fund is profiling his story in an in-depth hour-long video presentation.  Mastagni Holstedt attorney Greg Thoming represented Martinez at trial.

 

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.

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.