SPOA WINS COURT DECISION
EXPANDING OFFICERS’ RIGHT OF ACCESS TO PERSONNEL COMPLAINTS
By David E. Mastagni, Esq.
& Kasey Clark
In a decision rebuking
the Sacramento PD and Chief Venegas for withholding from a Sacramento
POA member the personnel complaint index maintained by Internal Affairs,
the Third District Court of Appeal has given to California police
officers the right to review and respond to internal affairs records
which do not result in disciplinary action.
On September 3, 2002, the
court issued Sacramento Police Officers’ Association v. Venegas
(2002) WL2005779, ordering the Sacramento County Superior Court to
compel the department to allow Lieutenant Michael Kime to review and
rebut adverse comments on an internal affairs index card that did not
lead to discipline. The decision will be published.
Kime was charged in 1995
with neglect of duty when his take-home vehicle was stolen and later
recovered. He was temporarily transferred from the bomb squad. An
internal affairs investigation sustained the charge, but no punitive
action was ever taken against Kime. A record of the allegation and
disposition, however, was maintained on an index card in the SPD
Internal Affairs Division.
MH&A Filed Writ After
Department Refused to Comply with the POBR: Government
Code sections 3305 and 3306, part of the Public Safety Officers
Procedural Bill of Rights Act (POBR), prohibit law enforcement agencies
from entering adverse comments in an officer’s personnel file "or
any other file used for personnel purposes," unless the officer has
read, signed or refused to sign the document. (§3305). The officer has
30 days to file a written response to any adverse comment entered in the
officer’s personnel file. (§3306).
Kime’s request to
review and respond to the department’s record of his neglect of duty
complaint was denied in 1995. In early 1996, the Law Firm of Mastagni,
Holstedt & Amick petitioned for a writ of mandate to compel the
department to allow Kime access to the complaint under sections 3305 and
3306.
The department claimed
its decision not to impose any adverse action negated Kime’s right of
access to the documents. The department also asserted it had no
obligation to disclose the information to Kime because (1) the documents
were confidential; (2) the document would not be used for disciplinary
or promotional decisions; and (3) the internal affairs file did not
constitute a personnel file within the meaning of the POBR. The trial
court denied the Petition for Writ of Mandate because the department had
not imposed discipline and had claimed the internal affairs files were
not used for "evaluations, assignments, status changes, or to
impose discipline."
Decision Gives Officers Access to Any "Potentially Adverse"
Document: We appealed the decision to the Third District Court of
Appeal on grounds the index card was an "adverse comment" to
which Kime had a right to respond. In the briefs to the court, we argued
the plain language of sections 3305 and 3306 required disclosure. Other
appellate decisions already had held citizen complaints and other
personnel documents that did not result in disciplinary action per se
nonetheless were "adverse comments" under the POBR. (See,
e.g., Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347; Aguilar
v. Johnson (1988) 202 Cal.App.3d 241). These decisions, we argued,
warranted disclosure of Kime’s records because a record of complaints
maintained in an internal affairs file are "adverse comments"
used by a department for the "personnel purposes" of
evaluating an officer’s job performance and imposing future
discipline.
The court agreed. A panel
of three judges held sections 3305 and 3306 provide Kime, and all
officers, the right to see and reply to a discipline record in an
internal affairs file because the file contains comments "adverse
to his interest." Citing our Supreme Court in County of
Riverside v. Superior Court (Madrigal) (2002) 27 Cal.4th 793, the
court stated those sections should be construed broadly to include any
documentation in any department file that may affect an officer’s
employment status: "Regardless of whether the employing agency
contemplates or has rejected further action regarding an adverse comment
made against a peace officer employee, the officer is entitled to
disclosure of the comment if it is entered in an agency file used for a
personnel purpose." The court’s holding relies primarily on the Aguilar
case and on the more recent decision of the state Supreme Court in
Madrigal.
The decision means any
documents which may affect an officer’s employment now must be
disclosed for review and an opportunity to respond regardless of whether
the employer intends to use them for discipline. "The broad
language employed by the Legislature in sections 3305 and 3306 does not
limit their reach to comments that have resulted in, or will result in,
punitive action against an officer." The statute is aimed at a
common law enforcement practice of using non-disciplinary and non-appealable
comments to evaluate officer performance, however unfairly. As the court
explained in the SPOA decision,
"The Legislature
appears to have been concerned [in the POBR] with the potential
unfairness that may result from an adverse comment that is not
accompanied by punitive action and, thus, will escape the procedural
protections available during administrative review of a punitive action.
. . . Even though an adverse comment does not directly result in
punitive action, it has the potential of creating an adverse impression
that could influence future personnel decisions concerning an officer,
including decisions that do not constitute discipline or punitive
action."
Court Rejected Department’s Claim the Records Were Confidential: In
resolving the issues before it, the Court of Appeal first examined and
rejected the applicability of Government Code section 3303(g), which
allows a department to prevent disclosure by deeming investigative
documents "confidential." The department contended §3303(g)
provides the department absolute discretion to deem information to be
confidential forever. Denying this claim, the court held confidentiality
applies only during the conduct of an investigation. The POBR, the court
said, "does not give the department an absolute right to deem any
and all information confidential and to assert such confidentiality
against any and all requests for access."
The court’s holding is
significant because the court rejected the department’s attempts to
hide the adverse documents behind a label of
"confidentiality." The court found persons other than internal
affairs investigators already have access to discipline files. (See Pen.
Code §832.5(c)). Any "shield of confidentiality" over
personnel records "would make it difficult for an accused peace
officer to respond to and rebut a false claim of misconduct." Peace
officers must have access to their own discipline records to explain or
refute sustained charges.
City Loses on Argument
Attempting to Protect Complainants: The
department argued unsuccessfully that giving an officer access to the
internal affairs card would discourage citizens from filing complaints
against peace officers because there would be no guarantee of
confidentiality. "Some people," wrote the court, "might
view a shield of confidentiality as a license to make false allegations
of police misconduct." While acknowledging others may be dissuaded
from alleging misconduct without the "shield of
confidentiality," the court aptly noted the Legislature had
articulated a countervailing public policy in declaring the rights and
protections afforded peace officers by the POBR to be a matter of
statewide concern. "The Legislature has resolved these policy
conflicts in favor of peace officer employees."
Government Code §3306.5 Likely Broadens the Court’s Ruling: The
SPOA court held an internal affairs file is a "personnel file, or .
. . file used for any personnel purposes." But the court excluded
from Kime any information on the index card that was not adverse. Thus,
the court implied Kime, and any other officer, would not have a right of
access to the entire investigative record.
Another POBR provision,
§3306.5, may narrow the court’s ruling. Section 3306.5 provides peace
officers a broad right of access to any information in a personnel file
that may affect employment status. The original petition in this case
was filed before the Legislature enacted that section and the effect of
the statute was not before the court. As §3306.5 is not limited to
"adverse comments," however, the statute likely provides a
right of access to the entire investigative file regardless of a
complaint’s final disposition.
The SPOA already has
obtained a favorable decision using this analysis. In April 2002,
Superior Court Judge Lloyd Connelly issued a writ of mandate compelling
the city of Sacramento to provide Officer Aaron Wyley access to
departmental investigation summaries, opinions and analysis, and
disciplinary recommendations in his internal affairs file, pursuant to
§3306.5. (Aaron Wyley v. City of Sacramento, Sacramento County
Superior Court No. 01CS01453).
Officer’s Appeal in 1998 Preceded Supreme Court’s Madrigal Decision:
As the court implicitly acknowledged, the SPOA sought groundbreaking
access to internal affairs files at the time the original petition was
brought in this case. Our arguments in Kime preceded by four years the
addition to the POBR of §3306.5, which gives officers a procedure for
access and review of their personnel records, and the recent spate of
published decisions expanding the right of officers to see, respond to,
and appeal various adverse documents placed in those records. The SPOA
is to be congratulated for the foresight and persistence of its members
and executive board in fighting for expanded police rights.
Any SPOA member with
questions regarding their rights to investigative materials contained in
internal affairs or other department files is welcome to contact David
E. Mastagni or Kasey Christopher Clark at (916) 446-4692.
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