Spoa Wins Court Decision Expanding Officers’ Right of Access to Personnel Complaints

Posted by David E. Mastagni

In a decision rebuking the Sacramento PD and Chief Venegas for withholding from a Sacramento POA member the personnel complaint index maintained by Internal Affairs, the Third District Court of Appeal has given to California police officers the right to review and respond to internal affairs records which do not result in disciplinary action.

On September 3, 2002, the court issued Sacramento Police Officers’ Association v. Venegas (2002) WL2005779, ordering the Sacramento County Superior Court to compel the department to allow Lieutenant Michael Kime to review and rebut adverse comments on an internal affairs index card that did not lead to discipline. The decision will be published.

Kime was charged in 1995 with neglect of duty when his take-home vehicle was stolen and later recovered. He was temporarily transferred from the bomb squad. An internal affairs investigation sustained the charge, but no punitive action was ever taken against Kime. A record of the allegation and disposition, however, was maintained on an index card in the SPD Internal Affairs Division.

MH&A Filed Writ After Department Refused to Comply with the POBR: Government Code sections 3305 and 3306, part of the Public Safety Officers Procedural Bill of Rights Act (POBR), prohibit law enforcement agencies from entering adverse comments in an officer’s personnel file “or any other file used for personnel purposes,” unless the officer has read, signed or refused to sign the document. (§3305). The officer has 30 days to file a written response to any adverse comment entered in the officer’s personnel file. (§3306).

Kime’s request to review and respond to the department’s record of his neglect of duty complaint was denied in 1995. In early 1996, the Law Firm of Mastagni, Holstedt & Amick petitioned for a writ of mandate to compel the department to allow Kime access to the complaint under sections 3305 and 3306.

The department claimed its decision not to impose any adverse action negated Kime’s right of access to the documents. The department also asserted it had no obligation to disclose the information to Kime because (1) the documents were confidential; (2) the document would not be used for disciplinary or promotional decisions; and (3) the internal affairs file did not constitute a personnel file within the meaning of the POBR. The trial court denied the Petition for Writ of Mandate because the department had not imposed discipline and had claimed the internal affairs files were not used for “evaluations, assignments, status changes, or to impose discipline.”

Decision Gives Officers Access to Any “Potentially Adverse” Document: We appealed the decision to the Third District Court of Appeal on grounds the index card was an “adverse comment” to which Kime had a right to respond. In the briefs to the court, we argued the plain language of sections 3305 and 3306 required disclosure. Other appellate decisions already had held citizen complaints and other personnel documents that did not result in disciplinary action per se nonetheless were “adverse comments” under the POBR. (See, e.g., Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347; Aguilar v. Johnson (1988) 202 Cal.App.3d 241). These decisions, we argued, warranted disclosure of Kime’s records because a record of complaints maintained in an internal affairs file are “adverse comments” used by a department for the “personnel purposes” of evaluating an officer’s job performance and imposing future discipline.

The court agreed. A panel of three judges held sections 3305 and 3306 provide Kime, and all officers, the right to see and reply to a discipline record in an internal affairs file because the file contains comments “adverse to his interest.” Citing our Supreme Court in County of Riverside v. Superior Court (Madrigal) (2002) 27 Cal.4th 793, the court stated those sections should be construed broadly to include any documentation in any department file that may affect an officer’s employment status: “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’s holding relies primarily on the Aguilar case and on the more recent decision of the state Supreme Court in Madrigal.

The decision means any documents which may affect an officer’s employment now must be disclosed for review and an opportunity to respond regardless of whether the employer intends to use them for discipline. “The broad language employed by the Legislature in sections 3305 and 3306 does not limit their reach to comments that have resulted in, or will result in, punitive action against an officer.” The statute is aimed at a common law enforcement practice of using non-disciplinary and non-appealable comments to evaluate officer performance, however unfairly. As the court explained in the SPOA decision,

“The Legislature appears to have been concerned [in the POBR] with the potential unfairness that may result from an adverse comment that is not accompanied by punitive action and, thus, will escape the procedural protections available during administrative review of a punitive action. . . . 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.”

Court Rejected Department’s Claim the Records Were Confidential: In resolving the issues before it, the Court of Appeal first examined and rejected the applicability of Government Code section 3303(g), which allows a department to prevent disclosure by deeming investigative documents “confidential.” The department contended §3303(g) provides the department absolute discretion to deem information to be confidential forever. Denying this claim, the court held confidentiality applies only during the conduct of an investigation. The POBR, the court said, “does not give the department an absolute right to deem any and all information confidential and to assert such confidentiality against any and all requests for access.”

The court’s holding is significant because the court rejected the department’s attempts to hide the adverse documents behind a label of “confidentiality.” The court found persons other than internal affairs investigators already have access to discipline files. (See Pen. Code §832.5(c)). Any “shield of confidentiality” over personnel records “would make it difficult for an accused peace officer to respond to and rebut a false claim of misconduct.” Peace officers must have access to their own discipline records to explain or refute sustained charges.

City Loses on Argument Attempting to Protect Complainants: The department argued unsuccessfully that giving an officer access to the internal affairs card would discourage citizens from filing complaints against peace officers because there would be no guarantee of confidentiality. “Some people,” wrote the court, “might view a shield of confidentiality as a license to make false allegations of police misconduct.” While acknowledging others may be dissuaded from alleging misconduct without the “shield of confidentiality,” the court aptly noted the Legislature had articulated a countervailing public policy in declaring the rights and protections afforded peace officers by the POBR to be a matter of statewide concern. “The Legislature has resolved these policy conflicts in favor of peace officer employees.”

Government Code §3306.5 Likely Broadens the Court’s Ruling: The SPOA court held an internal affairs file is a “personnel file, or . . . file used for any personnel purposes.” But the court excluded from Kime any information on the index card that was not adverse. Thus, the court implied Kime, and any other officer, would not have a right of access to the entire investigative record.

Another POBR provision, §3306.5, may narrow the court’s ruling. Section 3306.5 provides peace officers a broad right of access to any information in a personnel file that may affect employment status. The original petition in this case was filed before the Legislature enacted that section and the effect of the statute was not before the court. As §3306.5 is not limited to “adverse comments,” however, the statute likely provides a right of access to the entire investigative file regardless of a complaint’s final disposition.

The SPOA already has obtained a favorable decision using this analysis. In April 2002, Superior Court Judge Lloyd Connelly issued a writ of mandate compelling the city of Sacramento to provide Officer Aaron Wyley access to departmental investigation summaries, opinions and analysis, and disciplinary recommendations in his internal affairs file, pursuant to §3306.5. (Aaron Wyley v. City of Sacramento, Sacramento County Superior Court No. 01CS01453).

Officer’s Appeal in 1998 Preceded Supreme Court’s Madrigal Decision: As the court implicitly acknowledged, the SPOA sought groundbreaking access to internal affairs files at the time the original petition was brought in this case. Our arguments in Kime preceded by four years the addition to the POBR of §3306.5, which gives officers a procedure for access and review of their personnel records, and the recent spate of published decisions expanding the right of officers to see, respond to, and appeal various adverse documents placed in those records. The SPOA is to be congratulated for the foresight and persistence of its members and executive board in fighting for expanded police rights.

Any SPOA member with questions regarding their rights to investigative materials contained in internal affairs or other department files is welcome to contact David E. Mastagni or Kasey Christopher Clark at 916-446-4692.