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By PORAC | May 1, 2015 | Posted in PORAC LDF News

Court Finds that City of Menlo Park Violated Pobra

SEAN D. HOWELL

Senior Associate Attorney
Mastagni Holstedt, APC

A common issue that arises in the practice of representing peace officers is employers’ increasingly clever methods of “keeping book” on their peace officer employees without the employees’ knowledge. Secret files and varying methods of storing documents — be it on computer, in locations far from what the employing agency considers the “official personnel file” or in the email of an administrator — are just a few of the lengths that some agencies will go to in an attempt to maintain negative information about an officer, without the employee being aware that the information exists and will be used against them at a later date when it is advantageous for the employer.

Government Code sections 3305–3306.5 describe a peace officer’s right to be provided with a copy of any negative comments, an opportunity to sign an acknowledgment that the document will be placed in a personnel file, and 30 days to respond to the negative comment. They also outline the right to inspect and have documents that were placed in the personnel file erroneously or without notice to the employee removed from the personnel file so they cannot be used against the officer at a later date, without the due process afforded them under POBRA.

Rolando Igno was a Menlo Park Police Officer who received a Notice of Intended Discipline in 2012 from the former chief. The City proposed a suspension and sustained findings that Officer Igno did not agree with. After the Skelly hearing, the City and Igno entered into an agreement to have the suspension reduced significantly and remove the disputed allegations from the Notice of Intended Discipline as well as from the Internal Affairs Report’s findings. This agreement provided the City with an opportunity to limit Igno’s due process rights if he were found to have engaged in the disputed misconduct in the future. The disputed allegations would not be used against him as sustained findings because they were removed from his personnel file.

However, in 2014, the City issued a Notice of Intended Discipline for new allegations similar to those Igno disputed in 2012, arguably triggering the agreement that the parties signed after the 2012 Skelly hearing. However, in what can only be seen as an attempt to sway the arbitrator (who would inevitably see this document) with prior allegations, the City included, verbatim, the disputed allegations from the 2012 Notice of Intended Discipline as the primary basis for his proposed dismissal from employment.

The question then arose: How was the City able to include this language, verbatim, unless it had maintained a copy of the document after the agreement was struck in 2012 to eliminate it from Igno’s personnel file? Furthermore, the inclusion of this disputed allegation constituted a breach of the contract entered into by Igno and the City after the Skelly hearing in 2012. With the assistance of the PORAC Legal Defense Fund, Igno’s attorney filed a Petition for Writ of Mandamus pursuant to California Code of Civil Procedure Section 1085 to compel a ministerial duty that the City was required to execute.

The City made slightly inconsistent arguments to the San Mateo Superior Court. The City admitted that it made copies of the 2012 Notice of Intended Discipline, but it argued that it placed these copies in “other files” and not his “official personnel file,” and that these copies were not personnel documents, as if that removed the City’s responsibility to comply with POBRA sections requiring notice and a right to respond. The City also inconsistently argued that because Igno had seen the original of the copied document at one time (back in 2012) and signed an acknowledgment of its receipt, the City was justified in maintaining that document because Igno had been given notice.

This posed an interesting legal question: Do copies of an original document that was supposed to be removed from the file require new notice and opportunity to respond when an employer maintains the copies in “other files”? Igno and the court saw this as an end-run around the intent of the rights laid out in POBRA regarding notice of adverse comments. 

Penal Code Section 832.8 defines personnel documents and files as records and files that relate to, among other things, employee discipline, complaints or investigations of complaints against the officer, and any other information that would constitute an unwarranted invasion of privacy. The copy of the 2012 Notice of Intended Discipline is a document that was actually used for disciplinary purposes when it was drafted and given to the petitioner on June 2012 and was now being used for discipline in the 2014 matter. The document contained information about a complaint and the subsequent investigation of that complaint concerning how Igno performed his job duties. These admitted facts meet the definition under Penal Code sections 832.8(d) and (e).

In another case brought to the Superior Court by Mastagni Holstedt, APC, the court held that “an officer’s rights are triggered by the entry of any adverse comment in a personnel file or any other file used for a personnel purpose.” (Emphasis added; Sacramento Police Officers Association v. Venegas (2002) 101 Cal. App. 4th 916, 925; County of Riverside v. Superior Court (2002) 27 Cal. 4th 793, 802, 803). Therefore, despite the City’s desire to characterize the copy of the document and the disputed allegations as something other than a personnel record contained in something other than a personnel file, the Penal Code begs to differ. Igno argued that the Penal Code defines the character of documents, not the label the City places on the file or the secret location where it is maintained. The court agreed.

The court ordered the copies and all factual references to the disputed allegations to be removed from all files maintained or newly generated. This decision will allow Igno a fair opportunity at arbitration to have his case heard on the merits of the 2014 case, rather than having it tainted by the disputed and eventually removed allegations from the 2012 case.

About the Author

Sean D. Howell is a Senior Associate Attorney with Mastagni Holstedt, APC. He represented Officer Rolando Igno in his Superior Court action and continues to represent him for his administrative appeal.