Information Forwarded by Employing Agencies

Received and Maintained By POST Pertaining to Peace Officers

Not Subject to Discovery under Government Code §6550 et seq.

California Commission on Peace Officer Standards and Training v. Superior Court of Sacramento County 128 Cal. Rptr. 4th 281 (2005)

The Los Angeles Times requested POST to release peace officer names and birth dates, department names, appointment dates, appointment status, termination dates, and reason for termination, data contained on POST form 2-114 "Notice of Appointment/Termination." When POST denied the request, the Times filed a petition for writ of mandate, seeking release of the information pursuant to the California Public Records Act (CPRA).

The trial court granted the petition in part and POST appealed claiming the requested information was privileged and exempt from disclosure.

The California Court of Appeal, Third Appellate District (Sacramento) agreed with POST, holding that all of the information sought by the Times was obtained by POST from peace officer personnel records within the meaning of Penal Code § 832.7 and 832.8 and was exempt from disclosure under Government Code § 6254(k).

Although agreeing with the Times that discovery procedures contained in Evidence Code §1043 and § 1046 were only triggered when peace officer personnel records are sought in an underlying action, and are not applicable to CPRA requests by non-litigants seeking public records, the Appellate Court stated that just because the CPRA provides an independent mechanism to obtain law enforcement records outside the litigation framework does not strip peace officer personnel files of the statutory protections accorded to them by the Penal Code.

The Court of Appeal disagreed with the Times argument that because the names of peace officers, their departments, and their dates of employment were not expressly listed in Penal Code § 832.8 as components of a peace officer's personnel file, they did not constitute personnel records within the meaning of Penal Code § 832.7 and, therefore, were not privileged under the CPRA.

The Court of Appeal opined that under the plain language of these statutes, the protection afforded by Penal Code § 832.7 was not limited to information enumerated in subdivisions (a) through (f) of Penal Code § 832.8. Rather, the Court pointed out, ". a confidential personnel record is defined as 'any file.containing records relating to 'the enumerated items.. This means that if a file otherwise meeting the definition in Penal Code § 832.8 contains records relating to items specified in subdivisions (a) through (f) of that section, then the entire file is a personnel record and all of the items in the file are confidential ."

The Appellate Court concluded that even if the privilege applied only to the type of information specified in Penal Code § 832.8, subdivision (a), "... we conclude all the information sought by The Times constitutes 'employment history' within the meaning of this section. Dates of hire, promotion, demotion, departmental assignments, and other such events occurring during a person's employment as a peace officer, including his or her current status as a peace officer, are all literally part of a peace officer's employment history. "

The Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order and to enter a new order denying the petition for writ of mandate in its entirety. The Appellate Court also ordered the Times to reimburse POST for its cost in the proceeding.

How this affects your organization: Here the court shut down another "end run" attempt to obtain peace officer personnel information that departments are mandated to furnish to a state agency. This also clarifies what may be considered a peace officer's "employment history."

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Uncompensated Volunteer Not an Employee for Purposes

Of Liability for Unlawful Employment Practices under FEHA

Mendoza v. Town of Ross et al.2005 Cal. App. Lexis 612

Peter Mendoza, who was born with cerebral palsy resulting in quadriplegia and the use of a wheelchair, began working for the Town of Ross in January 1996 as a volunteer Community Service Officer. Mendoza was assigned to Ross Grammar School and assisted in traffic duties, crime prevention and neighborhood crime watch programs. After a probationary period, Mendoza was sworn in as a CSO February 1, 1999, provided a uniform and issued a badge bearing his name and the words "Community Service Officer - Ross Police." Mendoza had a regular work schedule, he worked on holidays and took two weeks vacation each year. Supervisors found his work satisfactory, and sought a grant to create a paid position for him. On June 25, 2001, Mendoza's position as a CSO was terminated, and Mendoza filed a lawsuit against the Town for wrongful termination in violation of public policy as set out by the FEHA (discrimination against the disabled), along with other causes.

The trial court sustained the Town's demurrer without leave to amend.

The California Court of Appeal, First Appellate District, Division Two, affirmed concluding that the trial court correctly sustained the Town's demurrer without leave to amend because Mendoza was an uncompensated volunteer and not an "employee" for purposes of imposition of liability for unlawful employment practices under FEHA

The Court of Appeal noted that, on its face, the FEHA conferred employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices. Mendoza , the court noted, relied on his police identification card, which stated, "This is to certify that Peter Mendoza is a duly appointed Community Service Officer." (Italics added.)

The Court of Appeal pointed out that regardless of what verbiage appeared on Mendoza 's identification card, he ignored the controlling local ordinance, which vested the town council with the "exclusive authority to make appointments to employment with the recommendation of the department heads." In Mendoza 's case, the Court pointed out, the Town's appointment process was not initiated, Mendoza was not appointed, and did not fall under the FEHA employee category as an appointee.

The Court also rejected Mendoza 's alternative attempt to acquire employee status pursuant to an implied contract of employment or one created by estoppel, by pointing to the general proposition that terms of public employment are governed by statute, not contract. Thus, the Appellate Court observed, in order for Mendoza to allege any type of employment-based action, whether it is wrongful termination or disability discrimination, Mendoza must sufficiently allege that he was employed or appointed in accordance with the applicable statue or ordinance - a process Mendoza essentially conceded did not take place in his case.

The Appellate Court also noted that Labor Code section 3352, subdivision (i) excluded public agency volunteers from workers' compensation coverage. "Employee" excludes "[a]ny person performing voluntary services for a public agency or a private, nonprofit organization who receives no remuneration for services other than meals, transportation, lodging, or reimbursement for incidental expenses" (LC 3352(i)). The Appellate Court also looked at Federal statutes and case law in an attempt to ascertain if Mendoza might meet federal criteria as an employee and found that the requirement that compensation of some sort was indispensable to the formation of an employment relationship.

The Appellate Court concluded that ... " Mendoza 's service as a CSO was not the result of an appointment provided to him pursuant to contract, nor was it an apprenticeship .. [E]ven if he could meet one of these definitional standards the absence of remuneration prevents him from attaining 'employee' status under the FEHA ."

How this affects your organization: It is incumbent upon department heads to ensure that they follow their local personnel ordinances and/or charter provisions when "appointing" individuals to positions within the organization and providing volunteers with identification cards declaring them to be "duly appointed." Although this is unusual in its factual situation, it points out the need for Chief's and Public Safety Directors to be aware of where their authority to appoint volunteers begins and ends.