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CASE
UPDATES
Officer Has Absolute Right To Review And Respond
To Information In Internal Affairs Index
SACRAMENTO POA, et al. v. ARTURO VENEGAS, JR., et al. 101 Cal. App. 4th 916
Officer Michael B. Kime had his take-home vehicle
stolen and a department internal investigation commenced. Ultimately
no action was taken as the result of the internal affairs investigation.
Officer Kime filed a petition for a writ of mandate pursuant to the
Public Safety Officer Procedural Bill of Rights Act, seeking access
to, and an opportunity to review and rebut, any document in any file
within the Department that contained comments adverse to his interests
- specifically, any document relating to an allegation that he was neglectful
in his duty with respect to the theft of his city-owned car.
The Department asserted
there were no records in Kime's personnel files concerning the stolen
car incident, and said: "While Internal Affairs may have records relating
to alleged misconduct, such allegations did not result in discipline
nor are the Internal Affairs records a personnel record." The Department
conceded that its internal affairs section had an index card that referred
to the investigation of the theft of Kime's city-owned car, i.e., all
complaints made against an officer are logged in the internal affairs
section on an index card kept in the officer's name.
The trial court denied the
petition, reasoning that Kime had failed to establish a right to disclosure
under the Public Safety Officers Procedural Bill of Rights Act because
(1) he had not established that any adverse personnel action was taken
against him, and (2) the Department had shown that internal affairs
index cards are not used for evaluations, assignments, status changes,
or to impose discipline.
The California Court of
Appeal, Third Appellate District (Sacramento), reversed the judgment
and remanded the matter for further proceedings, concluding that the
Department's internal affairs index care in Kime's name is a file "used
for ... personnel purposes" within the meaning of the Public Safety
Officers Procedural Bill of Rights Act.
The language in the Bill
of Rights Act should be construed broadly to include any document that
may serve as a basis for affecting the status of [a peace officer's]
employment, regardless of whether it is kept separate from the officer's
general personnel file. The Court pointed out that the events that would
trigger an officer's rights under §§ 3305 & 3306 are not limited
to formal disciplinary actions, but, rather, an officer's rights are
triggered by the entry of any adverse comment in a personnel file or
any other file used for a personnel purpose.
The Court went on that,
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. The
legislative remedy was to ensure that an officer was made aware of adverse
comments and given an opportunity to file a written response, should
he or she choose to do so.
The Court rejected the Department's
claim that Kime had no right to review any adverse comment about the
stolen police car incident because the information did not result in
any adverse personnel action. To the contrary, the Court concluded that,
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 also found unpersuasive
the Department's argument that it was not required to disclose adverse
comments in records kept by its internal affairs section because such
records were not personnel files and were not used for any personnel
purposes. The Department admitted that it does not distinguish citizen
or internally generated complaints against officers.
How this affects
your agency: An agency cannot argue that under its procedures
no one has access to internal affairs files except internal affairs
personnel in as much as Penal Code § 832.5 (c)(1), provides that "management
of the peace officer's employing agency shall have access to the files
described in this subdivision." It must also be remembered that although
complaints that are determined to be frivolous, unfounded, or exonerated
may not be used for punitive or promotional purposes unless the investigation
is reopened for sufficient cause, they can be used to require counseling
or additional training. As such an officer has access to, and should
be afforded the opportunity to review, all documents maintained by an
agency under the officer's name.
Procedure To Challenge Reduction In Pay For Peace Officers Unconstitutional
LAPPL v. CITY OF LOS ANGELES 102 Cal. App.
4th 85
This case
involves a declaratory relief action brought by the Los Angeles Police
Protective League regarding the administrative procedure, contained
in the police department manual, to challenge a reduction in pay grade
or removal from a bonus position for an employee of the Los Angeles
Police Department.
The trial court entered
summary judgment in favor of the City, finding that officers did not
have a property interest in their pay grades and bonus positions, which
would invoke due process rights under the state and federal constitutions.
The California Court of Appeal, Second Appellate District, reversed
and concluded that the procedure for administrative challenge to a punitive
reduction in pay grade, or de-selection from a bonus position for an
employee of the Los Angeles Police Department, did not satisfy the due
process requirements of the federal and state constitutions and did
not comply with the mandates of the Public Safety Officers Procedural
Bill of Rights Act.
The Appellate Court noted
that the threshold issue of whether officers held a property interest
in their pay grades was presented and decided, in an unpublished decision
on several grounds. The City argued that the officer's pay grade did
not embody a property interest and, therefore, did not entitle him to
the due process protections accorded a property interest. The Court
expressly disagreed, holding that "Cooper has a property interest in
his pay grade arising from the Police Department Manual section 763.60.
Under section 763.60, an officer cannot be reassigned to a lower pay
grade arbitrarily or without cause.
Citing Giuffre v. Sparks,
(1999) 76 Cal. App.4th 1322, the Court pointed out that where a
peace officer is subjected to a disciplinary reassignment or reduction
in pay grade, he or she is entitled to a full evidentiary hearing, including
sworn testimony, cross-examination of witnesses, and presentation of
argument by the public agency to which the officer could respond. The
Court opined that their LAPD Administrative Order did not comport with
this requirement.
(Note:
This case should be read with a companion case, Darryl Brown v.
City of Los Angeles, 2002 DJDAR 10887, heard in Division Seven,
and filed September 19, 2002.)
How this affects
your agency: This case restates long standing case law which
holds that, regardless of the reason, when a peace officers pay is negatively
affected there is a presumption that the action taken was for "punitive" reasons which triggers the officer's right to an administrative appeal.
Departments should review administrative procedures for employees to
challenge adjustments to their compensation to insure compliance with
due process requirements.
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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.
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