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LDF AIDS CCPOA In Victory Over CDC, DOJ Abuses

Posted on Friday, September 01, 2000 at 12:00PM

Imagine for a moment that you somehow make it to the million dollar question, and Regis Philbin asks you:

“Who, without warning, took over an entire prison, commandeered the warden to its bidding, and held correctional officers incommunicado while threatening them with arrest and incarceration if they refused to answer questions?”

He tells you the possible answers are:
(a) Storm Troopers in the 1930s
(b) Attica Inmates in the 1960s
(c) French Revolutionaries in the 1780s
(d) Deputies of the California State Attorney General’s Office in 1998

You use your last lifeline to eliminate (b) and (c). Now, what’s your final answer? Wouldn’t you be willing to bet a million bucks that your Attorney General’s Office would never have orchestrated such tyrannical, fascist-like activities? Well, if you did, Regis would have broken your heart and ripped up your seven figure check because indeed, the answer is (d) — as in “despicable.” No lesser word can be used to describe the conduct of the Attorney General’s Office, which conspired with the equally despicable California Department of Corrections (CDC) to storm Corcoran State Prison in 1998 under the guise of conducting a legitimate law enforcement investigation, while trampling on the well-established rights of the officers.

Mercifully, this disgraceful conduct did not go unchecked. On July 18, 2000, in a case certified for publication, the California Court of Appeal, First Appellate District, Division 2, approved and expanded upon injunctive relief previously granted by a Superior Court judge to prevent what it found as numerous violations of the Public Safety Officers’ Procedural Bill of Rights Act, Government Code Section 3300, et seq. (California Correctional Peace Officers’ Association, et al. v. State of California, et al., Case A085064). The issues essential to the court’s determination were strenuously argued in an amicus curiae brief prepared by Steve Silver, Bill Hadden and Elizabeth Silver Tourgeman, of Silver, Hadden & Silver in Santa Monica, an effort that was enthusiastically sponsored by the PORAC Legal Defense Fund.

The underlying facts were not in dispute. The Attorney General’s Office, annoyed that it was not receiving voluntary cooperation from correctional officers on various criminal investigations, sought the assistance of the warden at Corcoran to bully correctional officers into providing information. On August 20, 1998, the warden called a meeting in his office to inform California Correctional Peace Officers’ Association (CCPOA) officers that Department of Justice (DOJ) would be conducting an extensive criminal investigation. He told them that correctional officers who were to be interviewed would not be allowed legal representation during questioning or the opportunity to consult with counsel ahead of time. The warden advised CCPOA that its members would be ordered to cooperate in the investigation pursuant to Government Code Section 3304(a), which provides in pertinent part that “nothing in this section shall preclude a head of an agency from ordering a public safety officer to cooperate with other agencies involved in criminal investigations. If an officer fails to comply with such an order, the agency may officially charge him or her with insubordination.” The warden told them that if DOJ investigators identified an officer as a “witness” and the officer thereafter refused to answer questions, the officer would be disciplined immediately and walked off the grounds. On the other hand, an officer deemed to be a “target” who thereafter refused to be interviewed would be handcuffed and arrested.

On that same date, more than 20 correctional officers were interviewed, all of whom were told that they were not free to leave the prison grounds until they met with investigators. The officers were isolated by California Department of Corrections special service agents until individual interrogations began. Officers were not informed whether they were “witnesses” or “targets” until interviews were already underway, nor were they provided any advance notice of the nature of the investigation. Furthermore, they were not permitted to consult with an association attorney or representative prior to the interviews. They were threatened with disciplinary action if they did not answer investigators’ questions, and were told that any tape recordings that they might seek to make would be seized as criminal evidence at the end of the interviews.

CCPOA, through its counsel Ron Yank, of Carroll, Burdick & McDonough in San Francisco, filed a complaint alleging numerous constitutional, statutory and contractual causes of action. PORAC LDF was asked to submit an amicus brief in support of CCPOA’s contentions that its members’ statutory rights under the Public Safety Officers’ Procedural Bill of Rights Act were violated. Recognizing that CCPOA’s battle was a worthy and necessary one for all law enforcement officers to wage, LDF authorized the amicus brief by the office of Silver, Hadden & Silver that focused on those alleged violations.

The court summarily disposed of the meager arguments of the defendants to justify their unlawful excesses. The defendants claimed that since Government Code Section 3303(i) states that the Bill of Rights Act provisions were not applicable to an investigation “concerned solely and directly with alleged criminal activities”, and as Section 3304(a) authorizes an employer to order a public safety officer to cooperate in the criminal investigations of other agencies under penalty of insubordination, none of the provisions of the Act were applicable. The court found the defendants’ arguments to be devoid of merit. First, the court emphatically rejected the defendants’ claim that the involvement of the Department of Justice obliterated the obligations of CDC to adhere to the provisions of the Act in its conduct with its own employees.

We agree that, in this situation, the DOJ’s involvement does not serve to immunize the CDC from the provisions of Section 3303. CDC and DOJ must be considered to have been acting together in this investigation: The CDC did not merely order the correctional officers to cooperate with the DOJ investigation, but delivered interviewees to DOJ investigators, and threatened them with arrest and/or discipline if they asserted their rights during interrogation by DOJ agents. Until they had given statements, correctional officers were prevented from leaving prison grounds by their employer. Hallway exits and interrogation rooms were guarded by the CDC. The interviews took place during work hours or immediately thereafter on work premises. Upon being told by DOJ interrogators that an officer was not providing satisfactory responses during the interrogation, CDC employees threatened the officers with criminal and disciplinary sanctions. Under these circumstances, the CDC and the DOJ must be considered to have been acting in concert.

Next, the court held that defendants interpretation of the pertinent provisions would substantially defeat the entire purpose of the Bill of Rights Act:

Almost every administrative investigation of alleged misconduct could be recast as a criminal investigation to avoid the requirements of the Act. Thus, we agree that the criminal investigations referred to in subdivision (i) of Section 3303 and subdivision (a) of Section 3304 must be ones conducted primarily by outside agencies without significant active involvement or assistance by the employer.

The court concluded the CDC had violated the Act by failing to identify the interrogators, failing to give notice of the nature of the investigation, refusing to allow the officers to tape record their interrogations, refusing to allow officers to consult with counsel or bring counsel to the interrogations, and failing to advise officers of their constitutional rights, all of which violated various subdivisions of Government Code Section 3303.

The case is a major victory upholding officers’ rights under the Act, and preventing unscrupulous employers and law enforcement agencies from attempting to circumvent the Act by claiming that they are conducting an exclusively criminal investigation. In finding that any substantial involvement by the employer in the conduct of the investigation brings the matter within the ambit of the Act, the court refused to be persuaded by specious arguments designed to subvert the purposes for which the Act was created in the first place.

LDF is proud to be a part of the never ending battle to curb the seemingly insatiable appetite for power by unscrupulous and unaccountable public officials, and LDF will continue to assist its sister organizations to maintain the collective rights of all officers. The abusive tactics of the defendants in this case should serve as a poignant reminder that a law enforcement officer’s most vital lifeline may well be to his Legal Defense Fund and panel attorney.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.