A Yolo County District Attorney Investigator whose disciplinary action was disclosed by his chief investigator to members of a statewide investigators association has settled a federal lawsuit over the disclosure for over $75,000. While financial recovery for the release of confidential peace officer personnel information is difficult because the statute involved does not provide a monetary remedy, this case demonstrates lawsuits for such disclosures can be successful.
In November, 2008, the Yolo County District Attorney’s Chief Investigator, Pete Martin, told Dave Markss, President of the California Association of D.A. Investigators, as well as a Davis police officer, about a discipline case against veteran District Attorney Investigator Randy Skaggs. Dave Markss told the chief investigators in several other counties about the confidential information he was given by Chief Martin.
At the time, Mr. Skaggs was the subject of an administrative investigation involving an off-duty teaching assignment. Martin’s disclosure effectively ended Mr. Skagg’s law enforcement career by foreclosing any possibility he could get hired in another county, regardless of the outcome of the disciplinary action.
Penal Code Section 832.5 makes peace officer personnel records confidential. Law enforcement agencies are prohibited from disclosing those records except pursuant to a court order or in a criminal matter involving the officer, under Penal Code Section 832.7.
We filed a federal lawsuit against Yolo County and the Yolo County District Attorney’s Office for violations of Mr. Skaggs’s federal and state privacy and due process rights, his protections against whistleblower retaliation, and his confidentiality rights under Section 832.7. The lawsuit alleged Mr. Skaggs suffered emotional and physical distress as well as other damages from this egregious violation of his rights.
Traditionally, courts have not allowed recovery outside the workers’ compensation system for work-related personal injuries, even where those injuries were caused by the employer’s own misconduct. California Labor Code Section 3600(a) provides that workers’ compensation liability is the exclusive remedy against an employer for any injury to an employee that occurs in the course and scope of the employment.
This “exclusivity rule” is based on a presumed “compensation bargain” between employer and employee by which the employer agrees to pay for work-related injuries and the employee gives up the wider range of damages potentially available in a personal injury claim. One exception to this rule is those injuries caused when the employer has engaged in intentional conduct outside its proper role in the employment relationship.
In Mr. Skagg’s case, Chief Martin admitted to the disclosure during the administrative appeal from the disciplinary action. He even admitted it was a mistake to release the information, although he blamed others for failing to keep his illegal disclosure a secret.
In a similar case involving a peace officer’s claim for defamation, the court used a two-part test for evaluating whether a cause of action is exempt from the “exclusivity rule”: (1) is the employee seeking to recover damages for industrial personal injury or death sustained in and arising out of the course and scope of employment? (2) If so, do the employer’s actions or motives giving rise to the injury constitute a risk reasonably encompassed within the compensation bargain? If the answer to one or both of these questions is no, then the injury falls outside the purview of the worker’s compensation system. (Operating Engineers Local 3 v. Johnson (2003) 110 Cal. App. 4th 180.)
The employee’s injury, not the employer’s action in causing the injury, determines whether the “exclusivity rule” will bar a claim under Step 1 of the Johnson test. In a claim like Mr. Skaggs’ case, the types of injuries an employee sustains as a result of an employer’s breach of privacy — anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish – constitute a personal injury and satisfy the first step of the exclusivity analysis. The nature of the employer’s action, however – an invasion of the employee’s constitutional right to privacy – by definition goes beyond the bounds of acceptable employer conduct and “is obnoxious to the interests of the state and contrary to public policy and sound morality.” (Johnson at p. 191.)
These principles allowed Mr. Skaggs to reach a settlement with Yolo County that resolved both the lawsuit and the companion disciplinary action. Had the parties been unable to settle, the County and the District Attorney would have faced a higher settlement demand and greater public scrutiny as the case proceeded in federal court.
The “compensation bargain” does not contemplate acts which are too far removed from those an employee could reasonably expect to arise in the normal course and scope of employment. While administrative investigations, disciplinary actions, and employee reprimands are, in most circumstances, a normal part of the employment relationship, the intentional dissemination of private personnel information to employees and outsiders who have no legitimate reason to know of it may exceed the known and inherent risks of the workplace. Thus, improper dissemination of private employee matters can feasibly serve as the basis for a civil suit against an employer, as was successfully done for Mr. Skaggs.
Sean D. Howell is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Randy Skaggs in the civil litigation and in his administrative appeal.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Carlos Gonzalez Oakland POA
Very well informed group.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Christopher Wells Hollister POA
My rep was great.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- German Alvarez Anaheim PA
[My representative ] was great!
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Paul Barrolaza Twin Cities POA
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- James F. Beland Lake County SDA
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- James Beckman Miracosta College POA
Excellent service everytime.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Shandon Murphy San Mateo POA
Great work! Thank you so much!