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NCPOA Successfully Keeps Administrative Investigations Confidential

Posted on Wednesday, September 01, 2004 at 12:00PM
Posted by Bradley M. Fields

Most public agencies recognize the basic requirements of protections afforded by California law to their peace officers. However, the city of National City recently demonstrated that even the most basic of peace officer protections are not always held sacred. In a recent case, National City threatened to release to the public the results of a peace officer administrative investigation.

The facts are as follows: In November 2003, a male walked into a J.C. Penney store and, at some point, was the subject of an investigation regarding a shoplifting incident. The National City Police Department (NCPD) investigated. After questioning some of the suspect’s relatives regarding the incident, it was discovered that the suspect’s aunt and cousin were in the country illegally. An NCPD officer called the border patrol. After those relatives were deported, some in National City were upset that the NCPD called the border patrol. An administrative investigation began. Around the same time, members of the City Council assured the community it would publish the results of that administrative investigation.

After the administrative investigation concluded, the City Council was advised that confidentiality precluded it from publishing the results of the investigation. As a result, at a later meeting, the City Council passed a resolution ordering its police chief to commence a criminal investigation, at least in part relating to the appropriateness of the NCPD officers conduct, and to report the results within 30 days. The purported reason for that “criminal” investigation was that the City Council (mistakenly) believed that the results of such an investigation could be released to the public.

The National City Police Officers’ Association (NCPOA), and its attorneys, the Law Offices of Bobbitt & Pinckard, APC, rushed to defend the confidentiality of the investigation. Upon request, PORAC granted affirmative relief, which allowed the NCPOA to quickly move to court and seek injunctive relief. As a first step, NCPOA sought a temporary restraining order (TRO) against National City restraining it from publicly releasing the results of the purported criminal investigation into the actions of its police officers. Everett L. Bobbitt and the author of this article represented the NCPOA.

In support of its argument against the release of the investigation, NCPOA’s attorneys argued that the California Legislature, through Penal Code sections 832.7 & 832.8, has deemed peace officer personnel files confidential, which shall be released only pursuant to the Pitchess motion procedure, which requires good cause and an in camera review prior to disclosure (Pitchess v. Superior Court (1974) 11 Cal.3d 531). Other courts have interpreted Penal Code section 832.7’s disclosure prohibitions to apply regardless of the context in which the records are sought (City of Richmond v. Superior Court (1995) 32 Cal.App.4th 1430; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411).

In a more recent decision, the Fourth District Court of Appeal extended the Richmond and Hemet interpretation of Penal Code section 832.7 to apply to disciplinary appeal hearings (San Diego Police Officers’ Assoc. (SDPOA) v. City of San Diego Civil Service Commission (2003) 104 Cal.App.4th 275, 284-285). The SDPOA court followed the reasoning of Richmond and Hemet by noting that it did not assume that the California Legislature intended to strictly limit disclosure of police personnel records in civil and criminal matters, but allow broad disclosure at public disciplinary appeal hearings without any showing of good cause. Id. at 284. The court also followed the Richmond court’s statutory interpretation of Penal Code section 832.7, which determined that the Legislature intended to recognize the confidentiality of police personnel records regardless of the context in which disclosure was sought. Id. at 284-285.

Additionally, an analysis of California Correctional Peace Officers Assn. (CCPOA) v. State of California (2002) 82 Cal.App.4th 294 was instructive. In CCPOA, the court analyzed the appropriateness of restricting an investigation by the provisions of the Public Safety Officers’ Procedural Bill of Rights Act (Government Code 3300 et seq.), which places restrictions on any investigations, including those that are criminal in nature, when conducted by the public safety officer’s agency (Government Code section 3303). In CCPOA, the California Department of Justice (DOJ) was investigating alleged criminal activity by correctional officers. The court held that the California Department of Corrections (CDC)–the “employing public safety department”–and the DOJ, “must be considered to have been acting together in this investigation.” Id. at 307. As such, the provisions of the Government Code were extended to cover an investigation conducted by another agency under the guise of the officer’s own agency. Similarly, as NCPOA’s attorneys argued in the instant case, Penal Code section 832.7 must be extended to preclude the public release of any confidential police personnel information, even if the obviously administrative investigation is conducted under the guise of a criminal investigation.

In the TRO hearing, NCPOA’s attorneys successfully argued that the NCPOA and its members would suffer irreparable harm if National City released the confidential police personnel information contained in the investigation and that National City would suffer no irreparable harm if it could not release the results of the investigation until the matter could be more fully argued in court. The court granted NCPOA’s request for a TRO, which prevented it from publicly releasing the results of the purported criminal investigation into the actions of its police officers, and set the matter for further hearing.

After losing the TRO, National City saw the error of its ways and sought to settle the matter with the NCPOA. As such, National City and the NCPOA entered into a stipulated order for permanent injunction, wherein National City agreed never to publicly release the results of any pending or completed investigation into the conduct of an officer unless required by law. Additionally, National City agreed to pay NCPOA’s attorneys’ fees and costs.

NCPOA is grateful to PORAC for granting affirmative relief to stop National City from publicly disclosing confidential personnel information. Hopefully, other cities will more easily learn the lesson it took a while for National City to grasp.

About the author – Bradley M. Fields is an associate at Bobbitt & Pinckard, APC, a San Diego law firm focusing exclusively on the administrative, labor, criminal, and civil representation of peace officers. For the past eight years, Fields has represented peace officers in all phases of administrative investigations and appeals, as well as representing their labor associations in negotiations and other facets of employee rights.

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