SUPERIOR COURT JUDGE
ORDERS DEPARTMENT TO RELEASE WITHHELD SKELLY DOCUMENTS
By Kasey Christopher Clark
& David E. Mastagni
When the Sacramento
Police Department refused to provide Officer Aaron Wyley with its
investigative materials related to his proposed dismissal, the Legal
Defense Fund authorized David E. Mastagni and Kasey Clark, of Mastagni,
Holstedt & Amick, to file a petition for alternative writ of mandate
in Sacramento County Superior Court to compel disclosure of the material
under the Public Safety Officer’s Procedural Bill of Rights Act (POBR)
and Skelly v. State Personnel Board (1975) 15 Cal.3d 194. The
department had refused, in this and several previous cases, to provide
the internal affairs investigators’ summaries, the supervisors'
opinions and analysis of the alleged violations, and the written
recommendations of the officer’s chain-of-command as to whether and
what discipline was appropriate.
On October 19, 2001, the
Honorable Lloyd G. Connelly issued an alternative writ commanding the
department to comply with the Skelly request or show cause before
the court why it was not obligated to do so. He later ordered the
parties to submit supplemental briefs on whether Wyley had failed to
exhaust his administrative remedies.
City's Practices Violated
Peace Officer Due Process Rights: Due process requires, at a minimum,
that a permanent public employee against whom dismissal is proposed
receive a copy of all materials upon which the proposed discipline is
based and an opportunity to respond to those materials at a
pre-deprivation administrative hearing, commonly referred to as a "Skelly
hearing." (Skelly v. State Personnel Board (1975) 15 Cal.3d
194, 215.) The right to "a copy of . . . the materials upon which
the action is based" has been interpreted by the courts and the
State Personnel Board to mean a copy of all materials reviewed by the
appointing authority before proposing discipline. (See, e.g., Parker v.
City of Fountain Valley (1981) 127 Cal.App.3d 99; Ethel Warren (1999)
SPB Dec. No. 99-09.) An employee is entitled even to those materials
which are exculpatory or mitigating so the employee may prepare a proper
defense to the allegations.
But the city of
Sacramento consistently refused to provide accused employees with
investigative materials related to discipline, although the Skelly
officer, hearing a predisciplinary appeal, was allowed to review the
documents and ask the employee questions about the contents. The
practice allowed the department to conceal opinions, analyses, and
recommendations which did not support the adverse action, thereby
depriving employees of mitigating or exculpatory evidence to raise at
the Skelly hearing.
Without the opinions,
analyses, and recommendations, an accused employee was left to guess at
the chief's rationale for the severity of the discipline imposed.
The city's practices not
only violated officers' procedural due process rights to the
disciplinary materials, but violated the POBR as well. Under Government
Code section 3306.5, enacted January 2001, law enforcement agencies must
provide peace officers access to any information in the officer's
personnel files "that has been used to determine that officer’s .
. . termination or other disciplinary action." The statute
expressly prohibits law enforcement agencies from claiming
confidentiality to conceal reports contained within the officer’s
personnel file.
The city of Sacramento,
attempting to avoid final adjudication over an accused officer’s right
of access to the opinions, analysis, and recommendations in discipline
cases, asked Judge Connelly not to rule on the issue because Wyley’s
termination had been overturned and he had been awarded full back pay.
On March 14, 2002, Judge Connelly ruled the issue was moot because the
Civil Service Board had already granted the requested relief.
Judge Reverses Decision
and Orders Documents Released: Sensing an opportunity to obtain a
dispositive ruling on this persistent Skelly issue, we filed a
motion for reconsideration and an amended complaint naming the
Sacramento Police Officers Association as a party to the litigation. We
filed an additional pleading on April 3, 2002, advising Judge Connelly
of the California Supreme Court’s ruling in County of Riverside v.
Superior Court (Madrigal) (March 28, 2002) 27 Cal.4th 793. The Riverside
case holds the POBR entitles peace officers to any adverse comments
created by a department regardless of applicable statutory or common law
privileges.
On April 24, 2002,
Connelly reversed his earlier decision and issued an order compelling
the Sacramento Police Department to turn over to Wyley the opinions,
analysis, and recommendations from his discipline case. The crucial
ruling opens the door to obtaining those documents in all future
discipline cases involving city of Sacramento police officers.
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