Court Grants Injunction against City of Modesto Police Department for Violation of Peace Officers’ Bill of Rights

Legal Defense Fund lawyers have successfully obtained an injunction against the City of Modesto and the Modesto Police Department for the department’s violation of a police officer’s rights under the Peace Officers’ Bill of Rights. Robert Finley retired from his police officer position in June 1994. Prior to retiring, in January 1994, he was interviewed in an Internal Affairs investigation.

Wanting to put in for a special assignment, and having not heard anything for quite some time after the interview, Finley inquired of his representative, Paul Konsdorf, as to the status of the investigation. Konsdorf contacted department administration, who told him that no action would be forthcoming as a result of the interview.

This information was related by Konsdorf to Finley. Finley went on with his employment as a police officer until his retirement for medical reasons in June 1994.

In early 1998, Finley began to seek positions with Stanislaus County. Two of these positions were as a coroner and as a group supervisor. The two positions included a testing process and a background investigation. He successfully completed the testing process and went through the background investigation. To his surprise, Finley did not pass either of the background investigations.

At a loss to explain why he conducted his own investigations. This investigation leads him to his personnel file in March 1999. On March 17, 1999, he reviewed his personnel file and found for the first time, a copy of an Internal Affairs investigation, related to the interview in which he participated in January 1994.

Along with the investigation was a cover letter written by the deputy chief sustaining the allegations against him. The allegations were fairly serious, involving charges of use of his position to influence a district attorney on a plea bargain for an acquaintance.

Upon discovering the investigation in this file, he contacted Konsdorf, who conducted interviews of several of the county employees involved in the coroner and group supervisor positions. It was learned by Konsdorf that Finley did not receive the positions, and failed the background investigation to a large extent because of the existence of the documentation in his file. Konsdorf concluded his investigation, and the case was turned over to PORAC Legal Defense Fund attorney, Stuart D. Adams, with Goyette & Adams.

With Legal Defense Fund backing, Adams filed a Petition for Mandatory Injunction requesting that the documentation be removed from the file, that the department be ordered to comply with the Peace Officers’ Bill of Rights in all future proceedings dealing with Modesto police officers and, further, seeking damages in the form of compensatory damages for the loss of income, emotional distress and punitive damages.

The basis for the injunction was that the city had violated the provisions of Government Code §3305 and §3306. Section 3305 states in essence that no comment adverse to the peace officer’s interest may be placed in the officer’s personnel file without the officer being given an opportunity to review and sign the documentation. Section 3306 allows an officer to write, or to provide a written response, to any adverse comments within 30 days of them being placed within his file.

The injunction was filed under §3309.5, which gives the Superior Court immediate jurisdiction over cases involving violations of the Peace Officers’ Bill of Rights.

The lawsuit was unique in three areas. First, Finley was a retired peace officer seeking to enforce his rights under the Peace Officers’ Bill of Rights. The suit sought to afford officers the ability to seek to enforce their rights under the Peace Officers’ Bill of Rights even after separation from service. Second, the lawsuit sought an order removing documentation from the file.

The Peace Officers’ Bill of Rights does not specifically provide that removal of the documentation is a remedy. It was argued that allowing Finley to review the documentation, sign it, and write a response to it at this late date, would be futile and that only by removing the documentation would the court begin to make Finley whole.

Third, the lawsuit sought the award by a judge of compensatory, general and punitive damages. There is only one precedential case in California wherein a peace officer has sought damages for violations of the Peace Officers’ Bill of Rights (see Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 55 Cal.Rptr.2d 460).

The judge agreed, and in fact, the city did not contest, that the city and the department had violated the provisions of Government Code §3305 and §3306. The judge granted Finley’s request for the permanent removal of the documentation from his personnel file. The judge further ordered the police department to comply with the provisions of the Peace Officers’ Bill of Rights in the future.

The court also ordered that the city reimburse Finley for his attorney’s fees, and costs for his having to seek legal assistance, in addressing the violation. The court rejected the request for compensatory, general and punitive damages.

The basis for this rejection was §3309.5 does not specifically state that these types of damages are recoverable and, further, the court in the Gales case cited above found that such damages are not available in a civil action brought under §3309.5.

Even without the award of the compensatory, general and punitive damages, the case was a significant victory. According to attorney Adams, “The case was beneficial to peace officers in general, in that it demonstrates that an officer can successfully have this type of damaging information permanently removed from his or her personnel file if they can show that the department in some way violated the Peace Officers’ Bill of Rights.

It is also a significant benefit to the City of Modesto police officers in general in that now, not only do they have the ability to file an injunction under §3309.5 of the Government Code, but they can also seek to have the city held in contempt for violating the Finely order.”

If the department violates the provisions of the Government Code in the future, the officers can rely on the Finley decision to go back to court and ask that the court hold the department in contempt. If the court feels that in fact the department has violated the Peace Officers’ Bill of Rights in the future, and issues a contempt order, the city can be fined and individuals could even be incarcerated until such time as the contempt is rectified.

“This should provide some serious incentive for the police administration to obey the requirements of the Peace Officers’ Bill of Rights,” Adams said. “If in the future, the city violates the agreement, it is conceivable that even the chief of police could be thrown in jail until he agrees to comply with the Peace Officers’ Bill of Rights.”

Finley himself was extremely pleased with the results, stating that he felt a tremendous sense of satisfaction knowing that Modesto police officers in the future could rely on the decision in his case and that his case will provide a benefit to them. “This was a nightmare. I was sitting there in shock looking at sustained allegations I had no idea were there.

Allegations I believe were not true, but I got a chance to contest. I just hope this prevents this type of thing happening to the other officers of the Modesto Police Department.” Finley said his fight is not over, however, as he has also filed a complaint about damages to try to recover the compensatory, general and punitive damages the court did not award in the injunction.

The injunction will have a great benefit with respect to his case seeking damages. The city will be precluded from arguing that it did not violate the Peace Officers’ Bill of Rights, as that issue has already been determined by a judge. The Legal Defense Fund is currently contemplating appealing the judge’s decision rejecting the compensatory, general and punitive damages in the injunction.