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EMPLOYMENT

CG 3303 (g) Entitles Officer To Investigator's Notes And Witness Taped Interviews

SAN DIEGO POA v. CITY OF SAN DIEGO (Bejarano) 2002 DJDAR 5775, 98 Cal. App. 4th 779; 120 Cal. Rptr. 2d 609

When a San Diego Police Officer has been accused of misconduct detectives investigated the accusations and, after completing the investigation, provided the accused officer with the final written report and a copy of the complaint that prompted the investigation. The accused officer was not provided with the investigators' raw notes or copies of any tape-recorded witness interviews, which, under department policy are both required to be preserved for two years.

The San Diego POA filed for a writ of mandate contending that Government Code §3303 (g) compelled the City to provide the accused officer with any raw notes and tape recordings of witness interviews taken as part of the investigation. The trial court granted the POA's requested relief, construing the terms "reports" and "complaints" in §3303 (g) to include the notes and tape-recorded interviews of witnesses. The California Court of Appeal, Fourth Appellate District, affirmed, holding that reference to reports and complaints in section 3303 (g) provided officers with protections similar to those enjoyed by criminal defendants.

The Court noted that the words of the statute, when read as a whole, supported the San Diego POA's interpretation of the statute. The officer was entitled to "any reports or complaints," and those words did not limit the officer's receipt of information to the final written report of the investigator. Additionally, the Court pointed out, the statute provides the officer with access to 'reports or complaints made by ... other persons." To the extent that an investigator's notes or tape-recorded interviews may contain reports or complaints made by other persons concerning the misconduct under investigation, the statute requires their production.

How this affects your agency: Case law, for many years, has been clear that when further proceedings are contemplated the officer under investigation is to be given a copy of all materials upon which the administration based it's decision to go forward with administrative action. However, the Court did not hold, as a matter of law, that agencies are under an obligation to preserve investigators raw notes. The Court did hold that, in as much as the notes were available, and had to be preserved by department policy, they must be made available to the accused officer.

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Relationship With Incarcerated Felon Creates Conflict of Interest

ORTIZ v. LOS ANGELS POLICE RELIEF ASSOCIATION 2002 DJDAR 6111, 98 Cal. App. 4th 1288; 120 Cal. Rptr. 2d 670

Cipriana Ortiz was employed by the Los Angeles Police Relief Association for 11 years to assist in the processing of insurance benefits for current and former officers of the Los Angeles Police Department. In that capacity, Ortiz had access to files containing confidential information about officers. Ortiz's superiors, upon learning of this, concluded that she had a conflict of interest because she had an intimate relationship with an inmate and access to confidential information about law enforcement personnel. Ortiz was given the choice of ending the relationship or terminating her employment and chose the latter. She then filed an action for violation of her right to privacy under the California Constitution.

The trial court granted summary judgment in favor of the Los Angeles Police Relief Association. The California Court of Appeal, Second Appellate District, affirmed, concluding that enforcement of the employer's conflict of interest policy was a rational response to a legitimate employer interest.

The Court pointed out that to allege an invasion of privacy, in violation of the state constitutional right to privacy, one must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.

The Court pointed out that privacy interest generally fell into one of two categories: (1) an interest in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ("autonomy privacy"), and (2) an interest in precluding the dissemination or misuse of sensitive and confidential information ("informational privacy"). The Court concluded that the right to marry was a fundamental right guaranteed by state and federal law.

The Court noted that under the circumstances here, the Los Angeles Police Relief Association did not routinely question its employees about their personal lives. It did not conduct investigations in that area, aside from verifying information provided by job applicants. Ortiz disclosed her pending marriage in asking for a day off and during that conversation told her supervisor that her fiancé was an inmate.

The Court concluded that there were competing interests and that privacy was not absolute, holding that invasion of privacy interest was not a violation of the state constitutional right to privacy if the invasion was justified by a competing interest. The Los Angeles Police Relief Association's conflict of interest rule was a rational means of pursing its interests to ensure that Ortiz would not divulge confidential information to inmates and to avoid an appearance of impropriety.

How this affects your agency: This case, again, reaffirms the use of reasonable regulations to establish a conflict of interest between an employers business and an employees personal activities, even if those activities would otherwise be constitutionally protected. While some may see this case as a way of justifying inquiry into protected areas for the purpose of conducting a background investigation on non-sworn personnel, caution must be exercised to ensure legitimate inquiry.

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Hostile Work Environment Actionable If One Act Falls Within Statutory Filing Period

NATIONAL RAILROAD PASSENGER CORP. v. MORGAN 2002 DJDAR 6371, 122 S. Ct. 612; 151 L. Ed. 2d 536

Morgan, a black male, filed a charge of discrimination and retaliation with the EEOC. He alleged that he had been subjected to discrete discriminatory and retaliatory acts and he had experienced a racially hostile work environment throughout his employment. The EEOC issued a "Notice of Right to Sue," and Morgan filed a lawsuit. While some of the allegedly discriminatory acts occurred within 300 days of the time that Morgan filed his EEOC charge, many took place prior to that time period.

The District Court granted Amtrak summary judgment, in party, holding that the company could not be liable for conduct occurring outside the 300 day filing period. The Ninth Circuit reversed, holding that a plaintiff may sue on claims that would ordinarily be time barred so long as they either are "sufficiently related" to incidents that fall within the statutory period or are part of a systematic policy or practice of discrimination that took place, at least in part, within the period.

The United States Supreme Court affirmed holding that a Title VII plaintiff, rising claims of discrete discriminatory or retaliatory acts, must file his or her charge within the appropriate 180 or 300 day period, but a charge alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls with filing period.

The Supreme Court noted that hostile environment claims are different in kind from discrete acts. Because of their very nature involves repeated conduct the "unlawful employment practice" cannot be said to occur on any particular day and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Determining whether an actionable hostile environment claim exists requires an examination of all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance.

The Supreme Court pointed out that because such a claim is composed of a series of separate acts that collectively constitute one "unlawful employment practice," it does not matter that some of the component acts fall outside the statutory time period. As long as an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered for the purpose of determining liability.

How does this affect your agency: The Supreme Court did not leave your agency defenseless when an employee unreasonably delays filing a charge. However, it is an absolute necessity that an independent investigation into the alleged unlawful employment practice attempt to establish when each act occurred, by whom, whether the alleged misconduct was reported and to whom, or why it was not reported, and when the last alleged act of misconduct occurred.

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[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. If you have any questions or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.