Appellate Court Clarifies Meaning of “Sustained” Under SB 1421
DAVID E. MASTAGNI
Partner – Mastagni Holstedt, APC
Prior to January 2019, access to peace officer records was only permitted through a Pitchess motion. Then Senate Bill 1421 amended Penal Code sections 832.7 and 832.8 to require disclosure of certain serious misconduct records under the California Public Records Act (CPRA) if they have been sustained after opportunity to appeal. The legislation did not address circumstances wherein an officer resigns prior to the completion of an investigation. Effective January 1, 2021, Senate Bill 16 expanded the definitions of serious misconduct and also required the disclosure of such records if the officer resigns prior to the completion of the investigation.
The recent decision in Wyatt v. Kern High School addressed the novel issue of whether sustained findings of misconduct must be disclosed where the sustained findings were issued after the officer resigned, thus denying him an opportunity to appeal the findings.
Kern High School District (KHSD) police officer Jerald Wyatt left the department while an internal affairs investigation was pending. Subsequently, in 2017, Wyatt discovered sustained findings for misuse of CLETS and dishonesty had been placed in his personnel file without notice or an opportunity to contest the findings. In 2019, KHSD received several CPRA record requests from various news agencies and others seeking personnel records of KHSD officers pertaining to:
- The discharge of a firearm at a person by an officer
- The use of force by an officer resulting in death or great bodily injury
- Sustained findings an officer engaged in sexual assault involving a member of the public
- Sustained findings of dishonesty-related misconduct by an officer
Wyatt was notified that KHSD intended to disclose his sustained findings in response to the CPRA requests. Wyatt filed suit to restrain KHSD from disclosing the records. He asserted the records were not “sustained” within the meaning of Penal Code section 832.8(b) because he was never notified of the findings or afforded an “opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code.” KHSD argued that Wyatt was not entitled to notice and appeal rights under the POBR once he resigned. As such, his opportunity for appeal was exhausted and the records could be disclosed. The Superior Court ultimately sided with the officer and prohibited KHSD from releasing his records. An appeal was filed.
The appellate court focused on whether the department’s sustained findings met the definition in Penal Code section 832.8(b), which would trigger a disclosure. SB 1421 provides (emphasis added): “‘Sustained’ means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy.”
The appellate court noted that the Legislature failed to address this circumstance and that it was equally plausible that the Legislature intended for such sustained records to be disclosed or that the officers’ privacy interests should prevail given that he was not afforded due process. Refusing to speculate over the legislative intent, the court found the records were not subject to disclosure under SB 1421. In short, the officer was not provided an opportunity to appeal the findings so they could not be sustained within the meaning of SB 1421. Thus, the records were not subject to disclosure at the time of the request in 2019.
The court expressly declined to issue an opinion as to whether or not the records would be disclosable pursuant to a request submitted after December 31, 2021, when SB 16 took effect. SB 16 added Penal Code section 832.7(b)(3), which states, in part (emphasis added): “Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.”
As the court declined to opine beyond the issues appealed, open issues remain regarding resignations during pending investigations of serious misconduct. SB 16 addresses circumstances wherein an officer resigned prior to the conclusion of an investigation but seems to assume the investigation won’t be concluded. However, SB 2 mandates completion of investigations into allegations of serious misconduct, effective January 1, 2023. The statutes do not clearly address the situation wherein an officer transfers to another agency while an investigation of serious misconduct is ongoing, but later determined to be not sustained. The not sustained finding and resignation trigger conflicting requirements.
About the Author
David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC. His labor and employment law practice includes administrative hearings, trial court and class actions, and appellate litigation in California and the federal courts of the Ninth Circuit. David is an experienced panel attorney for the Peace Officers Research Association of California (PORAC) Legal Defense Fund and frequently lectures on police reforms, constitutional rights, collective bargaining and police discipline. He provided legal analysis and advice on behalf of law enforcement stakeholders during legislative negotiations and hearings over AB 392, SB 230 and SB 1421.