New Legislation Seeks to Allow Public Access to Police Misconduct Records

Senator Mark Leno Introduces SB 1286 to Increase Law Enforcement Transparency

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During my training segment at the 2015 PORAC Conference which focused on the history and importance of California’s personnel record confidentiality laws, I predicted that the next phase of the nationwide debate on police accountability would involve a targeted effort to erode the significant privacy protections afforded to police misconduct records. (Click here to access my 2015 PORAC Conference Materials.) As it turns out, we did not have to wait long for that prediction to come true.  Today, Senator Mark Leno of San Francisco introduced Senate Bill 1286, which is specifically designed to increase public access to police misconduct records.

Amid a national conversation over police shootings and a push for law enforcement reform in San Francisco, Senator Leno has announced that he seeks to “improve transparency, accountability and trust between law enforcement and the public” by amending Penal Code Sections 832.5 and 832.7 (which establishes personnel record confidentiality), Evidence Code sections 1043 and 1045 (which sets out the process to gain access to confidential police records though Pitchess Motions), and Government Code section 3304.5 (which gives officers the right to appeal misconduct findings).   Although Senator Leno invited the American Civil Liberties Union to assist in drafting the bill, he did not contact law enforcement for any input.  Even now, he has not yet provided copies of the bill for law enforcement review.

Senator Leno’s published fact sheet on “Increasing Law Enforcement Transparency” reveals that the bill is designed to:

  • “Allow the public to access records related to sustained charges of serious misconduct, including sexual assault, racial or identity profiling, illegal search or seizure, job-related dishonesty, or legal violation of the rights of a member of the public, among others;”
  • “Allow the public to access records relating to any use of force that causes or is likely to cause death or serious bodily injury;”
  • “Allow people who file complaints alleging misconduct to access basic information related to the complaint, including whether the complaint was sustained, the factual findings, and any discipline imposed or corrective actions taken;”
  • “Allow localities to determine if they would like to hold public hearings and administrative appeals based on allegations of peace officer misconduct;
  • “Allow law enforcement records to be withheld if a court determines that a privacy interest outweighs the public’s interest in disclosure, or if there is a showing of a significant danger to an officer or another person.”

The last serious effort to increase public access to police misconduct records occurred in 2007 when Senator Gloria Romero co-authored SB 1019 with then Assembly Member Mark Leno to allow public police disciplinary hearings and overrule the decisions in Copley Press v. Superior Court and Berkeley Police Association v. City of Berkeley.  I was honored to work with PORAC to defeat SB 1019, and look forward to collaborating with PORAC again on SB 1286.

 

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Court Mandates that Officers Be Provided Reasonable Advance Notice of the Nature of the Investigation Before Submitting to Interrogation

BWLG2One of the key protections afforded to law enforcement officers by the Public Safety Officers’ Procedural Bill of Rights Act (POBR) is contained in Government Code section 3303(c), which states:

The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.

That simple sentence has sparked many a debate over how long before the investigatory interview, and with how much detail, a public safety employer must provide the required information. Surprisingly, in the nearly 40 years since the POBR was enacted, no published decision has issued to help answer those questions. Until now. With Friday’s publication of Ellins v. City of Sierra Madre (January 28, 2016), we finally have some guidance: Notice must be provided “reasonably prior” to the interrogation so that the officer has “sufficient time to meaningfully consult with his or her representative before the commencement of the interview.

Background

In the summer of 2010, the Sierra Madre Police Department received a letter from the ex-girlfriend of Officer John Ellins complaining that he had tracked her down in New York using information from the California Law Enforcement Telecommunications (CLETS) database.   The Department initiated an investigation, and in September 2010 Officer Ellins was given an investigation notice that simply stated:

An administrative investigation is currently being conducting regarding an alleged abuse of your peace officer powers and duties.

No further details on the nature of that alleged abuse was provided.

Just minutes before the interrogation was scheduled to begin on October 13, 2010, the investigator notified Ellins – orally and in writing – that he was alleged “in May 2010 [to have] inappropriately accessed the [CLETS database] and made numerous inquiries regarding [his] former girlfriend … and her relatives.” Ellins and his representative then requested that the investigator give them an hour to discuss the charges in private before the interview. The investigator agreed.

After 25 minutes, Ellins told the investigator that he refused to participate in the interview on the advice of his representative. Ellins’ commanding officer was then summoned and directly ordered him to sit for the interview. Ellins still refused.

Ellins was thereafter terminated for both the unlawful CLETS inquiries as well as insubordination. After an unsuccessful administrative appeal, Ellins filed suit alleging that the Department violated Government Code section 3303(c).   The sole question presented was whether his termination for insubordination was invalid because the Department violated POBR by not properly advising him of the nature of the investigation prior to the interrogation.

The Ruling

The court rejected the contentions of both parties concerning how much notice was required. The City argued that as long as notice temporally precedes the interrogation, even if by mere minutes, it is “prior to” the interrogation and hence sufficient. Ellins suggested that at least one day’s and up to five days’ advance notice was required. Instead, the court injected a “reasonableness” component into the mandate, stating:

[W]e hold that section 3303, subdivision (c), requires an officer to be informed of the nature of the investigation “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 also rejected the City’s contention that advanced disclosure of the nature of the investigation would “frustrate the effectiveness of an investigation,” holding, rather, that reasonable advance notice would aid the investigation by allowing the officer and his or her representative to be ‘”well-positioned’ to aid in a full and cogent presentation of the [officer’s] view of the matter, bringing to light justifications, explanations, extenuating circumstances, and other mitigating factors’ and removes the incentive for ‘uninformed representatives … to obstruct the investigation ‘as a precautionary means of protecting employees from unknown possibilities.'”

Nonetheless, the court also recognized that the amount of notice may need to vary with the circumstances of the particular case, and held that where early disclosure of an investigation’s subject matter could lead “to possible danger to individuals who are victims or otherwise implicated in the investigation and/or lead to the possible destruction of evidence within the officer’s control,” delayed disclosure is permissible.

Applying those principles to the issue at hand in the case before it, the court found the notice provided to Ellins complied with the POBR, noting that the Department had a legitimate concern for the safety of Ellins’ former girlfriend, who Ellins had tracked to New York using the CLETS information. The court also noted that the allegation was straightforward legally and factually — that is, whether Ellins had any official reason to run the CLETS searches — and that the investigator had given Ellins and his counsel the amount of time they requested to confer prior to the interview.   Under those circumstances, the court concluded that Ellins was informed reasonably prior to his interrogation.

Analysis/Perspective

While this decision assists in clarifying how much notice is required prior to an interrogation, it does not set any hard and fast rules, instead requiring that there be a balancing of interests and a consideration of reasonableness. Thus, the level of detail and timing will likely still vary depending on the specific facts and circumstances presented.

From my perspective, this case does not break new ground, even though it gives us the first published case to cite when disputes over the adequacy of the notice arise.  The reason:  most agencies I work with already utilize a reasonableness standard and provide a sufficient amount of detail long enough in advance for the officer to understand what the charges specifically are, and to prepare to respond with the aide of a representative.

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Reinstated (Again): Arbitrator Finds Grover Beach Officer Fit for Duty

BWLG2In an effort to avoid having to reinstate Santino “Sonny” Lopez after he successfully defeated his 2010 disciplinary termination, the Grover Beach Police Department ordered that Lopez submit to a psychological fitness for duty examination before its handpicked “independent” expert. The finding from that retaliatory examination has now been overturned, and Lopez has (once again) been ordered returned to work.

This Kafkaesque saga began in February 2010 when Lopez discharged his Taser during the rapid rescue of a kidnapped baby. Instead of being hailed as a hero for safely and quickly reuniting the baby with her mother, the Police Department decided that Lopez’s report did not match the video recorded by his TaserCam, and charged him with untruthfulness.

Even after he was exonerated following two separate intensive reviews of the misconduct allegations by both a Hearing Officer and the San Luis Obispo Superior Court (see, April 2013 PORAC News Article: Court Rejects Dishonesty and Excessive Force Charges, Grover Beach Police Officer Reinstated), April 2013 Articlethe City still refused to return Lopez to active duty.  Rather, the Police Chief repackaged his concerns about Lopez’s integrity and trustworthiness as a fitness for duty issue, and hired Dr. Gordon Wolf to re-evaluate Lopez’s testimony during the earlier termination appeal hearing to determine whether Lopez met POST Psychological Screening Dimension 6 for Integrity/Ethics.

Dr. Wolf intensively interviewed Lopez for two days, and administered two psychological tests, but was unable to find any basis upon which to hold that Lopez was unfit for duty. Dr. Wolf then received from the Chief 1900 pages of “supplemental” information that included a copy of the termination hearing record and a detailed analysis of why the Chief thought Lopez had lied during the original termination proceeding. It was only after Dr. Wolf reviewed this additional material that he found Lopez psychologically unfit for duty. Based on that finding, the City again terminated Lopez’s employment.

Lopez appealed the unfit finding to arbitration.  With the assistance of his attorney, Alison Berry Wilkinson, evidence was presented persuasively demonstrating the basis upon which Dr. Wolf found Lopez unfit was identical to the allegations in the prior termination case that had been resoundingly rejected by both a prior arbitrator and the San Luis Obispo Superior Court.  In addition, Lopez and Wilkinson presented evidence that Lopez had successfully passed three separate psychological fitness for duty examinations during his employment, including his pre-employment psychological, an examination ordered by the Department in 2000 that was performed by Dr. Susan Saxe-Clifford, and one conducted in September 2014 by Dr. Paul S.D. Berg, Psy.D.

A three-day hearing was held before independent Arbitrator Hugo Rossitter to determine whether the finding by Dr. Gordon Wolf should be upheld.

As noted by the arbitrator in his decision: “I am faced with the contrasting and opposite conclusions by two experts [Dr. Wolf and Dr. Berg], both of whom have decades of experience in administering FFDE exams, as well as pre-employment and other psychological examinations.”

The arbitrator ultimately found Dr. Wolf’s unfit finding was unjustified, and ordered that it be reversed and set aside, as well as mandated that Lopez be reinstated to his position as a police officer with full back pay and benefits.

Sonny Lopez is grateful to the PORAC Legal Defense Fund for having recognized that this post-reinstatement psychological fitness for duty examination was simply a backdoor, sham effort to avoid compliance with the Superior Court decision mandating his reinstatement.

Related Articles:

Grover Beach Chief’s Dishonesty Claims Rejected Again, CalCoast News (September 8, 2015)

Grover Beach Officer Gets His Job Back, San Luis Obispo Tribune (April 10, 2013)

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California Supreme Court Narrows Right to Review Notes Maintained in Supervisor Logs

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cropped-BWLG21.jpgOn August 24, 2015, the California Supreme Court created a limited exception to the right of a firefighter to review and respond to notes kept by a supervisor for later use in preparing personnel evaluations.

In Poole v. Orange County Fire Authority, the Supreme Court interpreted Government Code section 3255, a provision of the Firefighters’ Procedural Bill of Rights Act (FBOR), which states:

“A firefighter shall not have any comment adverse to his or her interest entered into his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. However, the entry may be made if after reading the instrument the firefighter refuses to sign it. That fact shall be noted on that document, and signed or initialed by the firefighter.”

It is well established that employers must provide public safety employees with the opportunity to read, review, and respond to negative comments used for a personnel purpose.  The narrow question in Poole was whether a file of  personal notes maintained by a supervisor were “used for a personnel purpose” when the supervisor did not share the file with anyone, and did not make the contents of the file available to anyone with authority to take adverse disciplinary action.  In this limited, narrow circumstance, the Supreme Court held that the supervisor was not required to provide the subject employee with the opportunity to read, review, and respond to the negative comments.

The FBOR was enacted in 2007 to provide firefighters with similar rights as those guaranteed to peace officers in the Public Safety Officers’ Procedural Bill of Rights Act (POBR). Because the language of section 3255 mirrors the POBR language in Government Code section 3305, this decision will impact both firefighters and peace officers.

Background

A fire captain with the Orange County Fire Authority maintained a “daily log” regarding each of the employees that he supervised. The captain created a separate individually named file for each employee, which he kept in his desk. The log contained descriptions of the employee’s activities on the job, and included both positive and negative aspects of the employee’s behavior. The log was used to assist the captain in preparing annual reviews and performance assessments.  Although the fire captain periodically discussed his documented observations about his subordinates with his supervisor, and with human resources personnel, the captain did not share the log itself with anyone.

The log noted several incidents where Firefighter Steven Poole  failed to complete his assigned duties in cleaning up the fire station.  The log entries were not shared with Poole.  However, those incidents were addressed in a performance improvement plan and noted in Poole’s annual evaluation.

Not all documented negative notations made their way into the performance evaluation. For example, an incident was noted in the daily log about Poole leaving a training class early to talk outside on his cell phone. Although that incident prompted a discussion with the captain, which was noted in the log, it was an isolated matter that was resolved without the need for a notation in the performance evaluation.

The Ruling

The Supreme Court held that negative comments and notes memorializing a supervisor’s own thoughts and observations did not trigger the employee’s FBOR rights when the supervisor’s log is not made available to, or shared with, anyone else, and where the supervisor had no independent authority to take negative action against the employee.

Specifically, the court concluded that such files do not trigger the employee’s rights under either Government Code section 3255 or 3256. Section 3255 requires the employer to inform the firefighter of any comment adverse to his or her interest in a personnel file or any other file used by the employer for personnel purposes.   Section 3256 entitles a firefighter to respond, in writing, to any adverse comment “entered in his or her personnel file” and mandates that the comment “be attached to, and [] accompany, the adverse comment.”

The Court held that where a supervisor’s log is “used solely to help its creator remember past events,” and is not shared with the creator’s supervisors, compliance with Government Code section 3255 is not required.  However, once the negative comments are used in a performance evaluation, or transmitted, in writing, to persons who make decisions related to the firefighter’s “qualifications for employment, promotion, additional compensation, or termination, or other disciplinary action,” then compliance is required.

Analysis/Perspective

This decision does not stand for the proposition that all supervisor logs and notes are exempt from the obligations imposed by the FBOR (Government Code sections 3255-3256) or the POBR (Government Code sections 3305-3306).  If the log is open to viewing by others, is maintained by a supervisor that has the authority to take or recommend disciplinary actions, and/or is used for any personnel purpose other than simply to refresh memory in preparation for an evaluation, the subject employee must be given the opportunity to read, review, sign, and respond to the adverse comment.

Government Code sections 3255-3256 (FBOR) and 3305-3306 (POBR) create obligations on employers who wish to document negative events for later use in either performance evaluations or disciplinary actions.  The failure to comply can be fatal to the Department’s ability to rely upon those comments.  Therefore, a conservative supervisor will continue to share and document the materials placed in his or her log with the subject employee despite the Supreme Court’s decision.

In Poole, the Supreme Court carved out a narrow exception.  Two key facts were central to that exception: (1) that the logs were not made available to, or shown to, anyone other than the fire captain who supervised Poole that made the performance notes; and (2) that the fire captain had no independent authority to take any adverse action against the firefighter. A change in either of these facts could render the supervisor logs in your agency subject to the requirements under the FBOR or POBR that the employee be given the opportunity to read, review, sign, and respond to the adverse comment before it is placed in the log, and could jeopardize the Department’s ability to rely upon such documentation in later proceedings.

From my perspective, the best practice for any supervisor maintaining a log or file related to performance is to  show and discuss the entries with the subject employee at the time the notations are made.  The reason: one of the supervisor’s fundamental responsibilities is to ensure that employees conform to departmental expectations, practices, and policies.  Secret files that simply document negatives without providing the opportunity for the subject employee to learn from the event and correct his or her behavior fail, in my opinion, to take advantage of the opportunity to turn a negative into a positive.  Such surprise negatives can also create the perception that the supervisor is simply wants to “sandbag” his or her subordinates, and fosters the belief that supervisors are only “out to get” them and are unfair.

Therefore, while this decision permits a supervisor to keep all written notes, comments, and logs, both good and bad, to his or herself without needing to comply with the obligations imposed by Government Codes 3255-3256 and 3305-3306, such a practice may not be as productive as taking the opportunity to use the incidents as a learning event, or to reinforce departmental expectations, practices, and policies.   Consequently, I encourage agencies and supervisors to continue the practice that has long existed in law enforcement of sharing and discussing the entries with the subject officer at the time the notation is made.

Click here to read the full decision.

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