Civil Service Commission Must Release

Name and Non-Exempt Documents

of Peace Officer's Disciplinary Appeal

Upon Public's Request

The Copley Press, Inc. v. The Superior Court of San Diego County 122 Cal. App. 4^th 489; 18 Cal. Rptr. 3d 657

In the present case and based on the decision in San Diego POA v. City of Dan Diego Civil Service Com. (2002) 104 Cal.App.4th 275 (hereinafter SDPOA) which addressed a narrow question regarding applicability of Penal Code § 832.7 in peace officer disciplinary appeal hearings, the Civil Service Commission (CSC) adopted "closed" appeal hearing rules and denied The Copley Press' (Copley) request for a peace officer's disciplinary hearing information.

Copley obtained information that a peace officer had requested a closed disciplinary hearing. The CSC's interim rules provided that if a peace officer requested a closed appeal hearing, the CSC would close the hearing and conceal the identity of the appealing officer. Copley filed a series of requests pursuant to the California Public Records Act (CPRA), seeking materials related to the appeal, including documents concerning the officer's termination or discipline, documents created by the CSC in connection with the case, including its findings and decision, any documents containing its findings or decision, and any tape recordings made of the appeal hearing. The CSC denied each of the requests pursuant to Government Code § 6254(c) and (k).

Thereafter, Copley filed a complaint for declaratory and injunctive relief, seeking disclosure of the documents and a finding that the practice of closing appeal hearings was unlawful. The Superior Court denied Copley's request for relief, stating, "The Court finds this matter is controlled by the holdings of (SDPOA) and Penal Code sections 832.7 and 832.8."

A week after the Superior Court's ruling, Copley made a CPRA request to the County and CSC seeking documents concerning the case that may have been received or created by the CSC after Copley's original requests. The CSC thereafter provided various documents, including the Order for Termination citing the grounds for discipline and an outline of the facts supporting each ground, the hearing officer's recommendation that the CSC accept a Stipulated Agreement regarding disposition of the appeal, and the minutes of the CSC proceedings approving the recommended disposition. Included in the Minutes of the Court, the Court noted that:

The involved officer and the Sheriff's Department stipulated the peace officer would withdraw his appeal, voluntarily resign his position, and admit to the factual validity of six of the seven causes underlying the basis for discipline; and the Sheriff's Department would withdraw its termination action and change the officer's exit status to "terminated-resignation by mutual consent."

The officer's identity having been redacted from each of the disclosed documents, Copley filed a petition for a writ of mandate with the California Court of Appeal, Fourth Appellate District, Division One. Copley requested a review of the trial court's order denying them relief.

The Appellate Court pointed out that ". . . the CSC, the hearing officer and trial court all considered that SDPOA and its analysis required appeal hearings be closed to the public unless the peace officer requested an open hearing, even though we cautioned in SDPOA that the closed hearing issue was beyond the scope of that decision." The Court noted that although Copley contended the issue was not before it, there was no appeal hearing. The disciplinary appeal was settled and an agreed upon disposition entered. It was therefore not appropriate to decide whether an appeal hearing may be closed to the public if the peace officer does not request an open hearing. The Court did not issue an advisory opinion on that specific issue. The Appellate Court opined that the issue should be decided in a case in which a peace officer does not request an open appeal hearing and the appeal hearing is closed to the public.

The Appellate Court stated that in the instant case, it was appropriate to decide whether the record of the appeal proceedings - which separately qualified as a public record within the meaning of the CPRA - must be disclosed pursuant to a CPRA request.

The Court agreed with prior holdings wherein Penal Code § 832.7 should be included into the CPRA through subdivision (k). Such inclusion would preclude citizens from attempting to use the CPRA to request a peace officer's personnel records. The Court's conclusion merely imports the entirety of Penal Code § 832.7 into the CPRA and returns it to the question of whether disclosure of appeal records are "exempted or prohibited pursuant to" Penal Code § 832.7. This specific issue has not been addressed by prior decisions which considered only personnel records as defined in Penal Code § 832.8, and not other evidence that may be introduced and considered in connection with a Government Code § 3304 appeal.

The Appellate Court noted that the confidentiality provision of Penal Code § 832.7 had a fundamental limitation. Specifically, it applies only to files maintained by the employing agency of the peace officer. The statutory provision does not apply to information regarding a peace officer when the information source is other than the employing agency's maintained personnel file, even if that information is duplicated in the file. To that end, the Court concluded that the only information subject to Penal Code § 832.7 and incorporated into Government Code § 6254 (k) is the written material maintained in the peace officer's personnel file or oral testimony that is a recitation from material in that file. Testimony of a percipient witness to events or from documents not maintained in the personnel file, is not information subject to Penal Code § 832.7 even though that information may be identical to or duplicates information in the officer's personnel file.

The Appellate Court concluded that because the CSC's records of the appeal were not documents from a personnel file or recited from documents in a personnel file, those records where therefore not governed by the limitation of Penal Code § 832.7. Further, a CPRA request for those types of records could not be denied under the exemption provision of Government Code § 6254(k). The CPRA request also could not be denied under Government Code § 6254(c), unless that information was within the defined limitation of Penal Code § 832.8. The Court pointed out that ". . . although information from the appeal proceeding might be added to the peace officer's file maintained by the employing agency, the CSC's records themselves do not nunc pro tunc become personnel files maintained by the peace officer's employer under Penal Code section 832.8 and exempt from a CPRA request for information relating to the appeal."

The Court expressed no opinion on whether the CSC could properly reject Copley's request under Government Code § 6255. The Court only concluded that the CSC erred by relying on Government Code § 6254(c) and (k) for the records' denial. The Court also recognized that when a disciplinary appeal entails the introduction of evidence from sources independent of a personnel file, public disclosure of the appeal hearing record pursuant to a CPRA request may include the disclosure of information that duplicates information in records meeting the defined criteria in Penal Code § 832.8. Finally, the Court noted that Penal Code § 832.7 did not cloak information in those records with the mantle of absolute privilege, but instead contemplates that although the records will retain their confidentiality, the same information derived from independent sources was not imbued with confidentiality.

The Court also granted Copley's petition insofar as it sought an order requiring release of the identity of the disciplined officer. The County and CSC offered no argument explaining why the redaction was mandated. Therefore, the Court concluded that Copley was entitled to the information described in its CPRA request to the CSC. Information could be redacted only to the extent that information consists of documents in the officer's personnel file or testimony that recites from those documents.

How does this affect your agency? This case clarifies the issue regarding Civil Service Commission hearings and the right of the public to make Public Records Act requests and receive specific information, even if that information duplicates data contained in a peace officer's personnel file, as long as the information is obtained from independent sources. The disciplinary appellate body, as guided by the advice of its legal counsel, should release the requested data and not the department.

California Law Mandates Accommodation Of

Employees Religious Belief and Religious Observance

If Reasonably Possible Without Undue Hardship

California Fair Employment and Housing Commission v. Gemini Aluminum Corp. 122 Cal. App. 4^th 1004; 18 Cal. Rptr. 3d 906

Lester Young had been employed for 15-months by the defendant, Gemini Aluminum Corporation. Young practiced his religion as a Jehovah's Witness. To that end, attending an annual three-day Jehovah's Witness convention was considered a form of worship and religious study in Young's religious faith.

Young advised his supervisor, Jack Kaufman, that he was a Jehovah Witness and was scheduled to attend a religious convention. He requested two days off from work to attend the convention. Kaufman, who was a member of the management committee which would grant or deny the request, was responsible for taking Young's request to management. However, even though Kaufman submitted a written request to the management committee the same day that it had been requested by Young, Kaufman failed to include the reason Young wanted the time off. Upon receiving the request, the committee denied Young's request. Kaufman subsequently submitted another written request, this time advising the committee that his request was to allow him to attend a religious convention. Nonetheless, the committee again denied the request.

Kaufman told Young that his request had been denied. Notwithstanding, Young advised Kaufman that he would be absent from work to attend the convention despite the committee's denial of his time off from work. Subsequent to Young being absent from work to attend the convention, when Young returned to work, he was given a 10-day suspension for failing to be present at work. Young told Kaufman that he thought the suspension was unfair because he felt that he was obligated to go to the convention, and because he knew of other employees who had received lesser suspensions for more absences than he was being punished for. Thereafter, Young telephoned Kaufman and told Kaufman he was going to the "labor board" regarding the appropriateness of the suspension. Kaufman reported the conversation with Young to the committee, and a few days later Young was terminated from his employment with Gemini.

Young filed a religious discrimination complaint with the Department of Fair Employment and Housing Commission (Commission). Upon hearing the matter, the Commission held that: 1) Gemini had discriminated against Young by failing to accommodate his religious beliefs, 2) that Gemini had failed to prevent discrimination, and 3) that Gemini had retaliated against Young for protesting the discrimination in violation of Government Code § 12940.

Gemini filed a petition for a writ of administrative mandate in the Los Angeles Superior Court. The writ was granted and the Commission was ordered to vacate its decision. Upon Young appealing the writ to the Court of Appeal, the Superior Court's order was reversed and remanded.

The Court of Appeal noted that the three prima facie elements of Government Code § 12940 were satisfied: 1) the employee sincerely held a religious belief, 2) the employer was aware of that belief, and 3) the belief conflicted with an employment requirement. The Court held that once the employee established the prima facie elements, the burden then shifted to the employer to establish that "it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]"

The Court pointed out that pursuant to California law, an employer is required to accommodate not just a religious belief, but also a religious observance if reasonably possible without undue hardship (Government Code § 12940(1)). The Court found nothing in the statutory language which requires an employer to accommodate only those religious practices that are required by the tenets of the employee's religion, or that is a "temporal mandate" of the religion.

The Court found that Young's discipline was not based upon "misconduct" as argued by Gemini. Rather, discipline was inappropriately administered after Young engaged in a protected activity and upon him objecting to Gemini's failure to accommodate his religious belief and observance. The Court rejected Gemini's assertion that it had a legitimate and nondiscriminatory reason for terminating Young because . . . "Young had been blatantly insubordinate and failed to comply with its attendance policy . . .. " Instead, the Court found that the perceived disobedience was triggered by Gemini's failure to attempt to accommodate Young's religious belief and practice. The Court further concluded that Gemini could not justify terminating an employee for perceived disobedience precipitated by its own violation of the requirements of the Commission.

The Court held that employers are required to "take all reasonable steps necessary to prevent discrimination" in the workplace (Government Code § 12940(k)). As such, an employer is required to ensure a discrimination-free work environment and promptly investigate an employee's discriminatory claim. The Court noted Gemini retaliated against Young instead of investigating the complaint.

How does this affect your agency? Every public and private sector employer is required to accommodate the religious beliefs and observances of its employees. Therefore, law enforcement agencies should have comprehensive internal guidelines for supervisors which describe their responsibilities pursuant to Government Code § 12940, et seq. Agencies should develop a comprehensive plan that clearly includes discussion and examples of what would constitute an "undue hardship" if an employee's request is to be denied.

Conviction For Filing A False Application

Upheld Where Applicant Had Same

Understanding As Employer Of What

Information Was Being Requested

United States v. Camper 384 F. 3d 1073 (2004)

Demond Camper pled guilty to a California misdemeanor charge of carrying a loaded firearm in public in violation of Penal Code §§ 12031(a)(1) and (a)(2)(F). Contained in the factual basis portion of his General Misdemeanor Guilty Plea form, Camper wrote, "On 4/15/00 . . . I willfully and unlawfully possessed a loaded firearm in a car. The firearm was not registered to me."

Camper subsequently applied for employment as a ramp agent at Los Angeles International Airport. A security clearance was required under federal law for the position. Camper completed a security badge application which contained a questionnaire entitled "Background Verification." The questionnaire asked, "Within the past ten years, have you been convicted . . . of any of the following offenses?" The twenty-five items list which followed included, "Unlawful possession, use, sale, distribution or manufacture of an explosive or weapon." Camper checked the "no" box for every crime, including the box for unlawful possession of a weapon.

As a result of his untruthful answer to the security question, Camper was indicted and charged with the crime of making a false statement to the government. When Camper moved to dismiss the indictment on the ground that his answer to the question was literally true because his conviction was for possessing a firearm in an unlawful manner, the District Court denied his motion. Consequently, Camper was found guilty of the crime charged.

The United States Court of Appeals, Ninth Circuit, affirmed the conviction. The Court pointed out that it was important to remember that the context of the question was in a questionnaire that did not refer directly to either state or federal law (although the security badge application contained numerous references to federal laws and regulation in sections other than the questionnaire at issue). There was nothing in the question's context to suggest that the questionnaire's terms were to be defined by reference to anything other than common usage.

The Court held that even when a question has two plausible meanings, where the evidence proves that the defendant understood one such meaning and answered falsely to it, a jury may convict a defendant for making a false statement. The Court concluded that there were two plausible meanings, but there was relevant extrinsic evidence as to which meaning Camper placed on the question. The crucial evidence regarding Camper's understanding of the phrase "unlawful possession" came from his written guilty plea form for the state conviction, where he stated that he ". . . willfully and unlawfully possessed a loaded firearm . . .." The Court found the evidence sufficient to support the conviction.

How does this affect your agency? Notwithstanding this being a federal case, the principle that background questionnaires should not contain ambiguities also applies to state and local agencies. To eliminate a candidate from consideration for employment because of him/her answering a question falsely, requires that the applicant and the prospective employer give the same definition to the question(s) at issue. It is absolutely necessary for background investigators to ensure applicants fully understand what the questions in the questionnaire mean. Agencies should continually review their background questionnaires to eliminate jargon, words of art, and ensure that their substance abuse questionnaires contain the "street name" of the substances they are asking a candidate about.