Access to Complaint

On August 10, 2004, Division Two of the First District Court of Appeal filed its decision in Michael Seligsohn and Ray Castillo v. Dr. Philip R. Day, Jr., Peter Goldstein, Linda R. Jackson, and City College of San Francisco (2004) 121 Cal. App. 4th 516, a case in which the court held that a community college employer of peace officers had to comply with the Public Safety Officers Procedural Bill of Rights Act (POBR) and could not hide behind state or federal education statutes to avoid that responsibility. On November 10, 2004, the Supreme Court denied the petition for review filed by the defendants. As hereinafter set forth, the decision benefits other peace officers.

The plaintiffs were Ray Castillo, a police officer, and Michael Seligsohn, a police sergeant, both peace officers under Penal Code §830.32 and members of the City College of San Francisco (CCSF) Police Department, as well as PORAC and it’s Legal Defense Fund. The defendants were the CCSF chancellor (Dr. Day), vice-chancellor (Dr. Goldstein), the then head of the CCSF Office of Affirmative Action (“OAA”) (Ms. Jackson) and the college.

The dispute arose out of the refusal by CCSF and the defendants to provide Castillo and Seligsohn with copies of and access to complaints made against them, arising out of different transactions, made by different complainants, and investigated by the CCSF OAA and not the CCSF Police Department. The issue concerned whether CCSF, pursuant to the Public Safety Officers Procedural Bill of Rights Act, Government Code §§3300, et seq, and/or the Public Records Act, Government Code §§6250, et seq, had to make the required disclosure. In deciding the case, the Court of Appeal did not reach the Public Records Act question and its applicability to the disputed non-disclosure.

The court resolved a question of first impression, i.e., whether a public agency that employs peace officers covered by the Bill of Rights must comply with those rights set forth in Government Code §3305 in investigations that are conducted by the agency’s non-police personnel. As a public agency employing peace officers, CCSF is obligated under Penal Code §832.5 to investigate complaints against those peace officers and retain related records for five years. The trial court gave the wrong answer to the question, agreed with CCSF that it did not have to disclose the complaints to the officers, denied our petition for writ of mandate to compel the disclosure, and denied our complaint about declaratory relief. The Court of Appeal, however, disagreed and reversed the trial court, and, in view of the Supreme Court’s en banc denial of review, the Court of Appeal decision is final. It is also binding on all courts in the state below the Court of Appeal level. Auto Equity Sales, Inc., et al, v. The Superior Court of Santa Clara County (1962) 57 Cal. 2d 450.

The Court of Appeal held that Government Code §3305 required CCSF to disclose the complaints to the officers because that provision in the bill of rights requires disclosure of any “adverse comment” about an officer entered into the officer’s personnel file “or any other file used for any personnel purposes” by the officer’s employer. The court noted that the label on the file was not controlling, but rather “adverse comment” is determined by the content of the record. The court noted that copies of correspondence from the Office of Affirmative Action to Castillo and Seligsohn notifying them that complaints had been filed against them and that they should present themselves for questioning were sent to the chief of police and Vice-Chancellor Goldstein, and could clearly affect their future employment. Among the appellate cases cited by the court were Aguilar v. Johnson (1988) 202 Cal. App. 3d 241 (a section 3305 case), Miller v. Chico Unified School District (1979) 24 Cal. 3d 703 (an Education Code case), and County of Riverside v. Superior Court (2002) 27 Cal. 4th 793 (a personnel file/background case).

The Court of Appeal also rejected CCSF’s argument that disclosure was not required because no disciplinary action had been taken against either officer. As noted by the court, that same argument was made by the city of Sacramento and rejected in Sacramento Police Officers Association v. Venegas (2002) 101 Cal. App. 4th 916, a case arising out of the refused access to an internal affairs file card indicating the officer had been under investigation.

Although the court agreed with our argument that Section 3305 required disclosure of the complaints to the accused officers regardless of who conducted the investigation and regardless of whether any punitive action was taken or threatened, our companion argument that Government Code §3303 (g) required disclosure after the officers were interrogated was rejected by the court. In doing so, the court noted that §3303, including subdivision (g), applies to investigations where the officer is “subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department,” and not to investigations conducted by other agencies or departments of the employing public agency, citing People v. Velez (1983) 44 Cal. App. 3d 558, a case involving a Huron police officer questioned by a member of the Fresno County Sheriff’s Department, and Shafer v. Los Angeles County Sheriff’s Department (2003) 106 Cal. App. 4th 1388, a case in which a deputy sheriff was deposed by a member of the county counsel’s office in connection with a worker’s compensation claim.

The apparent reason why the court concluded disclosure in our case was not required by Section 3303 (g) was that the persons conducting the interrogation of Castillo and Seligsohn were not members of the CCSF Police Department or “acting in concert” with the officers’ superiors in the police department. This is a significant point to keep in mind because if a police officer is ordered by a superior to cooperate with a non-department person conducting what amounts to an internal affairs type investigation, all of the rights under Government Code §§3300, et seq, apply. In such a case the department official ordering participation in the interrogation is “acting in concert” with the non-department personnel conducting the interrogation. In this case, neither Castillo nor Seligsohn were “ordered” by their chief or another superior in the department to submit to interrogation by the head of the Office of Affirmative Action and the outside private investigator hired by CCSF to assist in that investigation.

The use of non-police officers or even non-agency employees to conduct internal investigations is unusual but not unheard of. In the past two years, our office has represented police officers in internal affairs type investigations where private investigators were hired in two investigations and an attorney hired to do the third one. In each of the three, the officers were ordered to cooperate. That number is in addition to the investigations involving Castillo and Seligsohn.

In refusing to disclose the complaints to the two officers, CCSF justified its position on two grounds: The complaints were not investigated by the CCSF Police Department and the records of the investigations were student records under state and federal law and, therefore, could not be disclosed, arguments made to the Court of Appeal as well as the Supreme Court in the petition for review. Although there were no California Appellate Court decisions or Ninth Circuit federal court decisions that supported the arguments proffered by CCSF, some cases and regulations were helpful.

The federal law is the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §1232g, which provides that schools can lose federal funds if student records are not adequately protected from disclosure. That is the only penalty. The California Legislature enacted several provisions of the Education Code to protect the uninterrupted flow of federal funds by protecting student records.

The FERPA argument made by CCSF failed on several points. First, as held by the Court of Appeals for the Eighth Circuit in Klein Independent School District v. Mattox (1988) 830 F. 2d 576, faculty members are not students, and FERPA doesn’t have application to any records of their activities or complaints. The complaint against Castillo, made by a faculty member, was not a student record although a couple of students were interviewed in his underlying investigation on September 14, 2001, and FERPA had no application to the investigation of the professor’s complaint.

As to the student’s complaint against Seligsohn involving a citation issued to the student, in Bauer v. Kincaid, et al, (1991) 759 F. Supp. 575 the federal District Court held that records of the arrest of students were not student education records under FERPA and exempt from disclosure. Instead, state law regarding public records governed.

CCSF also dropped the ball in another way in their FERPA exemption claim. Among the arguments made against disclosure of the complaints to the officers was a purported “clash” between the officers’ rights under the Bill of Rights and the disclosure restrictions imposed on CCSF by FERPA. As pointed out to the Supreme Court in our response to the petition for review, if any clash between state law and FERPA was seen to exist, CCSF had a mandatory duty to report the “clash” to the federal secretary of education within 45 days of its discovery. In that regard, Title 34 of the Code of Federal Regulations (“CFR”) mandates in §99.61 that “(I)f an educational agency or institution determines that it cannot comply with the Act (§1232g) or this part due to conflict with state or local law, it shall notify the office within 45 days, giving the text and citation of the conflicting law.” The CCSF officials who should have been familiar with their duties under 34 CFR 99.61 either weren’t or just ignored, those duties to report the “clash” to the secretary of education.

Following the remittitur to be issued by the Court of Appeal we will return to the trial court for issuance of the writ of mandate originally sought and denied in addition to fees and costs on top of the costs awarded by the Court of Appeal. Although we would hope that CCSF will now comply with the law, bureaucratic foot-dragging and resistance to the result will not be a surprise.