SB 2: “Serious Misconduct” Decertification Investigations and Proceedings

MARIE S. MASTERS
Associate Attorney
Rains Lucia Stern St. Phalle & Silver, PC

Senate Bill 2 (SB 2) went into effect on January 1, 2022. As of January 1, 2023, employing departments are required to, within 10 days, report any complaint, charge or allegation that could result in an officer’s POST certificate(s) being suspended or revoked (i.e., allegations of any of nine acts of “serious misconduct” as defined in Penal Code §13510.8[b]). They, likewise within 10 days, must report the “final disposition” of any investigations that could result in the subject officer’s certification being suspended or revoked.

Because mere allegations are reportable, it is not surprising that since January 1, 2023, there have been 44,943 serious misconduct allegations made against 23,858 officers.¹ Of those allegations, 3,075 are “open” with POST, meaning that the POST Accountability Division has opened investigations. To date,² there have been 190 POST certificate revocations, including for serious misconduct, by default for non-response to a Letter of Intent to Revoke and as a result of disqualifying felony or misdemeanor convictions identified in Government Code §1029. Additionally, 153 officers have been temporarily suspended, as either an Immediate Temporary Suspension “in the best interest of the health, safety, or welfare of the public” pending a serious misconduct investigation outcome, or as the disposition of a serious misconduct investigation.

While the numbers demonstrate that a majority of agency reports result in no action being taken against officers’ certifications, that might not be of much comfort to officers who have received a Notice of Investigation from the Division. Even if the statistics are in your favor, many of our clients have questions about sitting for interviews during the Division’s investigation, what to expect during the various decertification hearings and privacy considerations about underlying Internal Affairs materials that employers provide to POST pursuant to reporting obligations.

Are POST Interviews “Voluntary”?

I apologize for the typical lawyer answer, but you guessed it: It depends. POST says “yes,” but I say “no.” I do not personally believe that an interview is truly “voluntary” if your decision to decline to sit for it can result in decertification pursuant to an independent allegation of “serious misconduct” (i.e., a new charge for failure to cooperate per Penal Code §13510.8[b][8],³ entirely independent from the original underlying charge).

During POST interviews, before the start of formal admonitions, subject officers are advised that they may provide any statement at the end of the interview process for consideration in the decision on their peace officer certification, and that said statement is completely voluntary. That strongly suggests that the “interview process” itself is not voluntary. The formal admonition⁴ given at the beginning of each interview, after introductions, reads as follows, with minor adjustments depending upon whether counsel is present or not:

“The purpose of our meeting today is to interview you about the facts and circumstances involving an allegation or allegations into alleged serious misconduct that may potentially violate California Penal Code Section 13510.8. You were given notice of your interview. We are recording the interview. Any statements you make will be used by POST in connection with its duties. The recording helps us to ensure that all of your statements are completely and accurately transcribed and is authorized by Commission Regulation 1206. The representative, your legal counsel, is allowed to observe the proceedings but is not allowed to ask questions, make comments or interfere with the conduct of the interview. If you need to take a break to use the restroom or attend to personal needs, we will allow you to do that, please ask first. And before we allow the break, we would just ask that you answer any pending questions before we take that break. Because POST is not your employing agency, California Government Code Sections 3303, et seq., also known as POBRA, does not apply. Your agency may or may not have policies that mandate your cooperation into the investigation. We at POST act independently from your agency and we represent the People of the State of California. Any refusal to cooperate with the investigation, including, but not limited to, the refusal to answer questions, may result in a finding that you engaged in serious misconduct, that is to say a failure to cooperate. That is to say with the exception of a lawful exercise of rights granted under the U.S. Constitution or California Constitution or any other law is not going to be considered a failure to cooperate.”

While POST’s position appears to be that serious misconduct investigation interviews are “voluntary,” the threat of decertification based on an independent “failure to cooperate” charge arguably makes it involuntary. This is the case for folks being interviewed as subject officers as well as witnesses. Common sense says that if you cannot opt out of participation without consequence, the interview is not truly “voluntary.” That said, to date, I am unaware of any charges actually being brought for an officer declining to participate in a POST interview (the threat of even potential decertification is fairly compelling, after all). The best way to avoid needing to sit for a POST interview to begin with is for departments to conduct their own fair and thorough interview during the underlying IA investigation, and for the subject officer to be candid and honest.

Procedurally, POST interviews are distinctly different from compelled IA interviews. POBRA does not apply and there is no Lybarger admonition. Subject officers are able to assert their Fifth Amendment rights during POST interviews, but the interview will almost certainly become part of a public record should the matter be set for decertification proceedings. POST additionally has administrative subpoena powers to compel witness participation in interviews as well as document production for evidentiary purposes.

This applies to anyone with a POST certificate and is obviously not agency-specific. Let’s say, hypothetically, you are a retiree who now works as an investigator for the District Attorney’s Office and your former employer contacts you for a witness interview. Before you ever so politely decline, you need to evaluate what the underlying investigation is about. Under SB 2, if you refuse to cooperate with your former department’s inquiry, it is conceivable that the matter could be reported to POST, and POST could initiate action to decertify you as a peace officer in your current job. There is nothing in SB 2 that restricts failure-to-cooperate allegations to cooperating with the current employer. Theoretically, this could apply to incidents that occurred at your former agency years ago and may not even involve an underlying charge of “serious misconduct.” To date, POST has not actually initiated any decertification proceedings based on a failure-to-cooperate charge that is independent of the underlying investigation, but we use this example to demonstrate that SB 2 affects nearly every aspect of IA investigations.

In sum, not every open case will result in an interview, but declining to sit for an interview could result in decertification on an independent basis from whatever “serious misconduct” allegations were initially investigated. During a POST interview, your attorney should create a record after the formal admonition is given that you are there for what is effectively a compelled interview under threat of decertification.

The good news is that my personal experience is that POST’s law enforcement consultants conduct very professional interviews, without making them unnecessarily contentious or lengthy. Further, POST only conducts its own interviews for a minority of open cases. For example, POST appears more inclined to complete its own interviews for cases where the employing agency did not conduct its own interview at all, conducted a superficial and inadequate interview or failed to complete its own investigation.

The same is true if the investigator believes the officer was dishonest in the underlying administrative proceeding. I frequently hear from clients something along the lines of “I don’t understand why this had to become an IA,” etc. While frivolous or retaliatory administrative investigations absolutely happen, it is usually in the officer’s best interest for their department to complete a thorough IA interview for “serious misconduct” cases, as required, because it more often than not results in investigation closure by POST.

What Should I Expect During Decertification Proceedings?

If you are a peace officer in California, you should tune in to at least one serious misconduct hearing conducted by the Peace Officer Standards Accountability Advisory Board, as well as one by the Commission on Peace Officer Standards and Training. Both are separate hearings in the fairly extensive decertification proceedings.

Thousands of officers have received “Notice of Investigation” correspondence from POST. Most investigations go nowhere and no action is required in response by the officer. If, however, the Division determines that “serious misconduct” did occur and that it is proven by clear and convincing evidence, the subject officer will receive a Notice of Intent to Revoke Certification. This is usually accompanied by a fairly lengthy report, called an Investigative Summary and Findings (ISF).⁵

Officers have 30 days to file a Request for Review of Peace Officer Certification (a simple one-page form),⁶ which initiates the “appeal” process. If you miss that deadline, you waive your right to appeal and forfeit your certification(s). Alternatively, officers can opt to voluntarily surrender their certification(s) if they do not want to be a peace officer in California again (note that voluntary surrenders are a permanent action, not a temporary surrender that can later be revoked). The 2025 Peace Officer Standards & Accountability Annual Report noted that appeal numbers are generally in decline. In 2025, only 31% of notices of intent to revoke resulted in an appeal (reportedly down from 38% in 2023 and 2024).

After initiating an appeal, you will attend an Advisory Board hearing, which is usually held quarterly. Based on personal observations, and being fairly generous, you can expect the same not-so-welcome treatment here that you would of civilian oversight boards and review agencies. The Advisory Board is composed of nine appointed members (though there is currently one vacancy).⁷ They include two “members of the public with strong consideration for individuals who have been subjected to wrongful use of force by a peace officer likely to cause death or great bodily injury, or who are surviving family members of a person killed by the wrongful use of deadly force by peace officer.” Another member must be an attorney who is not former or active law enforcement, who has “substantial experience involving oversight of peace officers.” Another two seats must be filled by “members of the public with community-based organizations experience on issues related to police accountability.”

You can see where this is going…. Fortunately, the Advisory Board’s decision in any decertification proceeding is only, well, advisory. Officers can choose to attend in person, remotely or through counsel. They may also submit a “written public comment” for the Advisory Board to review ahead of the hearing, which will become part of the public record. The officer or counsel may also make an oral public comment (limited to two minutes).⁸ In either event, material is presented to dispute the adequacy of the Division’s investigation, and presentation of new evidence is not allowed. The Advisory Board votes on each case after the presentation, needing a majority to proceed with any recommendation. The atmosphere at Advisory Board hearings ranges from town hall–like to docile protests to a fairly sterile administrative proceeding. Members of the public periodically appear to discuss cases unrelated to those on the day’s agenda.

Unless the subject officer opts to voluntarily surrender their certificate after the Advisory Board hearing, each case proceeds to the full POST Commission. The Commission is where officers are most likely to get a fair shake. It is composed of 17 appointed commissioners (there are currently 15).⁹ A majority of the commissioners come from a law enforcement background — a handful of which appear to be what I consider “rank-and-file-friendly.” The Commission hearing proceeds much like a more orderly version of an Advisory Board hearing. The assigned law enforcement consultant (LEC) presents each case. The subject officer can submit another written public comment and/or make a verbal presentation (which is still limited to two minutes). The purpose is again to dispute the sufficiency of the Division’s investigation, not to offer new evidence.

Commission Regulation 1213 (see 11 CCR § 1213) outlines factors that the Commission “shall” consider in each case. These include things like the officer’s prior conduct, discipline and service record, along with any prior instances of misconduct; mitigating or aggravating factors and/or evidence of rehabilitation; proximity or remoteness in time since the conduct occurred; and the motivation of the officer for the conduct involved, to name a few. Regulation 1216 in turn incorporates recently (as of February 17, 2026) amended formal discipline guidelines.

The guidelines establish a framework for creating consistent penalties for serious misconduct cases. While having formal guidelines does limit some flexibility for handling each matter on a “case-by-case” basis, it does help prevent disparate treatment (and for use-of-force cases explicitly directs a case-by-case analysis). The purpose of the guidelines is to promote uniformity, both in disciplinary recommendations by the Commission as well as by administrative law judges.¹⁰

The Commission then votes at the hearing on how to dispose of each case, needing a two-thirds vote to either adopt the Advisory Board’s decision or to make its own recommendation. The specific inquiry before the Commission for each case is “whether the record, in its entirety, supports the Advisory Board’s conclusion that the facts as presented by the Division, would constitute clear and convincing evidence of serious misconduct if presented at a full evidentiary hearing” (see POST Regulation 1216).

Commissioners may ask questions of the investigator or attorney from POST, the officer and their counsel. They might also choose to go into closed session to deliberate before voting. I would like to remind officers that these proceedings are public. There is a court reporter and everything said formally becomes part of a public record. It is also livestreamed on YouTube for ease of public attendance.

If the Commission votes to take adverse action on an officer’s certification(s), the officer still has the option of proceeding before an administrative law judge (ALJ) for a full evidentiary hearing as the next step in the review process. To date, only one case has moved all the way through an ALJ hearing (the certificate was canceled for fraud and/or misrepresentation). There are currently six cases pending for hearings before an ALJ. As you can see, a vast majority of these cases are not fully litigated, so to speak.

Following the Commission hearing, a deputy attorney general will prepare and serve an Accusation outlining the Commission’s Order. From there, the officer can default (accept the order as is) or file a Notice of Defense, which is effectively the request for an ALJ hearing. Those hearings, which are evidentiary (trial-type hearings), are scheduling at least several months out (if not closer to six to nine months). POST has the burden of meeting the clear and convincing evidence standard, and will seek revocation (i.e., not a suspension or lesser action). An ALJ ultimately issues a written advisory opinion, and the case returns to the Commission for final action. The Commission’s final order can be appealed to a Superior Court.

 Trends in Certificate Actions

The intent of the formal disciplinary guidelines is to create uniformity. That said, outside of formal guidelines, I have noticed trends with certain “serious misconduct” category cases. One of the most noticeable categories is cases involving substance abuse, usually encompassed under Penal Code §13510.8(b)(6) (“Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public, as determined by the commission.”). I have seen that the Advisory Board and Commission both appear inclined to reach settlements (i.e., vote to stay revocation pending fulfillment of specific settlement terms) for non-injury DUI cases, where the officer has taken measures to ensure that the behavior is not repeated and to address any underlying emotional issues that led to the incident in the first place. This likely also accounts for why “serious misconduct” cases of this nature tend to have higher appeal rates, even as the overall appeal rates decline.

Use-of-force cases are another category of interest. When relatively benign body-worn camera footage of a use of force on a handcuffed suspect was played during a hearing, there were audible gasps from POST employees seated in the room. The obvious concern is that many uses of force are frankly unsightly, if not outright ugly, to watch on body-worn camera footage. If the room collectively clutched its pearls over a non-injury use of force, I fret over how a K-9 deployment or critical incident may be viewed.

The discipline guidelines note that revocation is appropriate for “physical abuse” cases that result in death or serious bodily injury, or when the officer has “engaged in multiple acts of excessive or unreasonable force” even if death or serious bodily injury did not result. The discipline guidelines go on to state that “each case will be fact specific and depend in large part on the necessity for the type and degree of force used by the peace officer,” and that “consideration shall be based upon the totality of the circumstances known by the peace officer at the time of the incident.”

Another category of note is dishonesty pursuant to Penal Code Section 13510.8(b)(1). The Advisory Board and Division both appear to have a broader interpretation of what actually constitutes dishonesty. The definition is specific: “dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of misconduct by, a peace officer or custodial officer.” It expressly is not all categories of generalized dishonesty. I have seen the Commission narrow the scope of dishonesty inquiries to be consistent with that definition. Additionally, dishonesty is a category of “serious misconduct” that tends to be rather challenging to prove by clear and convincing evidence. Sustained findings for dishonesty during an underlying IA investigation that were proven by a preponderance of evidence do not necessarily equate to decertification.

Disclosure of Underlying IA Materials by POST?

The last topic of frequently asked questions we see is related to the privacy versus production of documents that are sent to POST pursuant to SB 2 reporting requirements. Senate Bill 1421 requires records related to police officer uses of force (among other topics) be available to the public. While anyone can make a California Public Records Act request to POST, their practice appears to be to err on the side of nondisclosure, instead forwarding CPRA requests back to the employing agency for a response pursuant to Penal Code §832.7.

POST’s full investigative packet — which includes most of the department’s investigation — is made publicly available once a case is set for hearing before the Advisory Board. That is done through a clickable link embedded in the online hearing agenda ahead of the hearing. If an officer elects to voluntarily surrender a certificate prior to the Advisory Board hearing, before the agenda is published, the investigative packet is not published on the POST website.

POST’s purview is to investigate serious misconduct, not department-specific policy violations. Thus, parts of the underlying IA packet are not relevant to investigations of serious misconduct allegations. To date, it appears that POST is relatively prudent in its records production, which should give officers some peace of mind that a serious misconduct investigation doesn’t drastically change what is and is not subject to public disclosure.

About the Author

Marie S. Masters is an associate attorney in the Rains Lucia Stern St. Phalle & Silver Legal Defense Practice Group. Marie represents peace officers in administrative investigations and disciplinary matters. In addition to a diverse legal background, Marie also has prior law enforcement experience.

References:

• This figure is current as of March 23, 2026. POST updates its Peace Officer Certifications Reporting figures daily, available at ca.gov/Peace-Officer-Certification-Reporting.
• Current as of March 23, 2026.
• This category of “serious misconduct” is defined in Penal Code §13510.8(b)(8) as: “Failure to cooperate with an investigation into potential police misconduct, including an investigation conducted pursuant to this chapter. For purposes of this paragraph, the lawful exercise of rights granted under the United States Constitution, the California Constitution, or any other law shall not be considered a failure to cooperate.”
• Please note that the verbatim admonition may vary slightly from investigator to investigator, in addition to specifics added to address counsel, if any is present, as well as any other case-specific concerns.
• Note that an ISF can also be issued for cases in which no action is being taken against an officer’s certificate, but POST completed a full investigation. This material may be helpful for officers to obtain in the event it includes exculpatory findings or evidence that might be helpful if the underlying administrative investigation with the employer is ongoing.
• This one-page form can be found at ca.gov/Forms#certs.
• Biographies of all Advisory Board members can be found at ca.gov/Peace-Officer-Standards-Accountability-Advisory-Board.
• Best practice is to submit a written public comment ahead of time and reserve the two minutes to respond to the assigned LEC’s case presentation. It is likewise not always necessary to subject the officer to the Advisory Board hearing except in limited circumstances, and counsel can instead make the appearance, whereas it is important for the officer to appear before the Commission.
• There are 15 governor-appointed commissioners, as well as one each appointed by the speaker of the Assembly and the Senate pro tempore: ca.gov/POST-Commission.
• POST Regulation 1216 now also explicitly permits the Commission to require in-person appearances by an officer with reasonable notice for any reason. This is an expansion of oversight authority, similar to that of other California professional licensing contexts.