Bart Poa Gives Employer Early Warning Over Pobra Protection

Posted by B.J. PIERCE, ESQ. Associate AttorneyMastagni, Holstedt, Amick, Miller & Johnsen

On August 22, 2011, the Bay Area Rapid Transit (BART) Authority conceded electronic files its Police Department maintained as an “Early Warning System” or “IA Profile” database constituted personnel files subject to the protections of the Public Safety Officers Procedural Bill of Rights Act (POBRA). BART agreed to remove adverse information that had been entered and maintained in the electronic files in violation of the POBRA.

Similarly, on October 28, 2011, BART agreed to remove letters of discussion and a negative performance evaluation that relied on the letters of discussion from an officer’s personnel file. The letters of discussion had been entered into the officer’s personnel file without providing notice or an opportunity to respond in violation of the POBRA. BART agreed to reissue the affected officer a performance evaluation that did not rely on the letters of discussion and to provide remedial training to its line supervisors on the POBRA’s requirements of notice and an opportunity to respond.

Case One: Early Warning System Created New Records on Peace Officers

In June 2011, an officer with the BART Police Department learned her agency was maintaining adverse material, including a list of Internal Affairs investigations in which she had been the subject or was implicated, in an electronic file created pursuant to a new “Lexipol” policy. The material was dated from the year 2000 through the present. The officer learned the file was being maintained by the police chief as an Early Warning System (EWS) to identify and address “problem employees.”

Under the new system, employees were monitored for performance and disciplinary issues and an electronic file was maintained in the employee’s name. Some of the areas monitored and documented in the files included:

1. Attendance and use of sick leave
2. Sustained and unsustained complaints
3. Civilian complaints or comments about officers
4. The number of obstructing or resisting arrest incidents in which the officer was involved
5. The number of vehicle collisions in which the officer was involved
6. Peer referrals
7. Substandard conduct or performance concerns of supervisors

The policy directed supervisors to “monitor the activity of subordinate employees to identify actual or perceived unprofessional behavior and/or substandard performance” and to “communicate such information to the Chief of Police” for inclusion in the EWS file. Similarly, the policy directed personnel assigned to Internal Affairs to “monitor all formal and informal allegations of employee misconduct received by their office” and “communicate such information to the Chief of Police” for inclusion in the EWS file. The Office of the Chief of Police prepared quarterly reports using these records and officers were evaluated, counseled and subjected to “corrective training” based on the EWS reports.

The new policy required that officers be “granted access to EWS records that pertain to that employee” after giving a “reasonable amount of notice” to the Office of the Chief. However, there was no requirement that the employee is advised an EWS file had been created or was being maintained or that comments adverse to the officer had been entered into the EWS file. It also did not require that officers be given an opportunity to respond in writing to any adverse comments or that their response is entered into the file with the adverse comment. Thus, on its face, the EWS policy violated POBRA requirements for notice, an opportunity to respond and entry of written rebuttal into their files (Gov. Code §§ 3505, 3506).

BART POA Grieves Early Warning System Policy

On June 24, 2011, Mastagni, Holstedt, Amick, Miller & Johnsen, acting on behalf of the BART Police Officers’ Association (BPOA), filed a grievance asserting the new policy violated the POBRA and the MOU between the BPOA and the BART Authority and demanded removal of all adverse material not entered or maintained in compliance with the POBRA and the MOU.

POBRA broadly prohibits employers from entering any comment adverse to the officer’s interest into his or her personnel file, or any other file, without proper notice to the employee:

“No public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should a public safety officer refuse to sign, that fact shall be noted on that document, and signed or initialed by such officer” (Gov. Code § 3305).

Agency’s Electronic Files Were Personnel Files Under POBRA

In response to the grievance, BART asserted it could avoid POBRA by maintaining the material in electronic form that, if it were maintained in a “paper” form, would unambiguously violate POBRA. This distinction has no basis in the law. Under POBRA, the label placed on a file is irrelevant; what matters is whether the materials in the file “may serve as a basis for affecting the status of the employee’s employment …” (Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 251; County of Riverside v. Superior Court (2002) 27 Cal.4^th 793, 801–802 [emphasis added]).

Any file, whether maintained as a paper copy, on an electronic storage device or on a computer network, hard drive or database, is subject to the same rules regarding maintenance and disclosure (Gov. Code §§ 3305, 3306; Pen. Code § 832.8). The California courts have dismissed semantic attempts to circumvent POBRA protections by designating or maintaining separate files. (See Aguilar v. Johnson (1988), 202 Cal.App.3d 241, 247 [“chief’s compliance with Government Code Sections 3305 and 3306 is not excused simply because the complaint is placed in a file separate from the personnel file”]; Miller v. Chico Unified School District (1979) 24 Cal.3d 703, 712—713 [employer “may not avoid the requirements of the statute by maintaining a ‘personnel file’ for certain documents relating to an employee, segregating elsewhere under a different label materials which may serve as a basis for affecting the status of the employee’s employment”]; Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4^th 278, 292 (CPOST) [officers entitled to review adverse material whether placed in a personnel file or maintained in a separate file].)

The courts have expressly held that Internal Affairs files such as those maintained in the EWS database are subject to POBRA. (See Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal.App.4^th 916, 928-929 [rejecting Department’s claim POBRA did not require it to disclose information in Internal Affairs files that did not result in discipline and holding that sections 3305 and 3306 “readily apply to an adverse comment” in an Internal Affairs file].) Material used in evaluating an employee or the employee’s performance are personnel records, regardless of how the material is named or where it is maintained (Pen. Code § 832.8(d)-(e); Aguilar, 202 Cal.App.3d at 247; Chico Unified School Dist., 24 Cal.3d at 712—713; CPOST, 42 Cal.4^th at 292; Seligsohn v. Day (2004) 121 Cal.App.4^th 518).

Further, any records of complaints and/or investigations of complaints are personnel records under POBRA, regardless of what they are named, how they are used or where they are maintained. Penal Code sections 832.8(d)-(e) defines a personnel record as:

“[A]ny file maintained under that individual’s name by his or her employing agency and containing records relating to … employee advancement, appraisal or discipline … [and] [c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.”

Under POBRA, “officers are entitled to review reports of complaints or similar matters that could affect the status of their employment, regardless of whether the information at issue actually was placed in the officer’s personnel files” (CPOST, supra, 42 Cal.4^th at 292).

BART’s Disclaimer of Any Punitive Purpose Didn’t Relieve Its Obligations Under POBRA

Notwithstanding these rules, BART attempted to avoid POBRA by claiming the EWS program did not have any punitive purpose; however, this disclaimer did not relieve BART of the notice requirements of the statute. BART’s disclaimer that the material was not a personnel file and would not be used for personnel reasons, including employee appraisal and/or disciplinary purposes, was insufficient to circumvent POBRA. The statute protects officers broadly against all adverse comments, not merely adverse comments used in disciplinary actions. (See Gov. Code 3305; Riverside, 27 Cal.4^th at 801—802.)

The courts have construed the statutory language to include any document that “may serve as a basis for affecting the status of the employee’s employment,” including citizen complaints kept in a file separate from the officer’s personnel file(Aguilar, 202 Cal.App.3d 241). The events that will trigger an officer’s rights under sections 3305 and 3306 “are not limited to formal disciplinary actions, such as the issuance of letters of reproval or admonishment or specific findings of misconduct” (Sacramento Police Officers, supra, 101 Cal.App.4^th at p. 925).

“Rather, 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. [¶] … [T]he broad language employed by the Legislature in sections 3305 and 3306 does not limit their reach to comments that have resulted in, or will result in, punitive action against an officer. The Legislature appears to have been concerned with the potential unfairness that may result from an adverse comment that is not accompanied by punitive action and, thus, will escape the procedural protections available during administrative review of a punitive action” (Sacramento Police Officers, supra, 101 Cal.App.4^th at pp. 925-926 [emphasis added]).

BART Concedes Grievance over Electronic Files

In BART’s case, adverse comments, including complaints, were maintained in EWS files. Officers were, or could have been, subjected to evaluation, informal counseling and corrective training based on material impermissibly maintained in the EWS files. Moreover, even if the contents of the files had never been used for employee evaluation or disciplinary purposes, they could be used for those purposes and therefore were subject to POBRA protections.

On August 22, 2011, the Labor Relations Department for BART unequivocally granted BPOA’s grievance, conceding “the IA Pro [EWS] Database is subject to the same provisions as traditional or paper IA Section Files.” BART agreed to remove all material maintained in violation of the POBRA, provide notice to affected employees and “keep all IA files, both paper and electronic, in accordance with” the POBRA and MOU.

Case Two: The POBRA’s Fairness Requirements of Notice and an Opportunity to Respond

In October 2011, an officer with the BART Police Department learned his agency was maintaining adverse material, including three disciplinary “Letters of Discussion” in his personnel file. The letters were entered in July 2011 without notice to the officer and without giving the officer an opportunity to submit a written rebuttal. Further, the line supervisor relied on the illegally entered letters in issuing the officer a negative performance evaluation.

BART POA Grieves Letters of Discipline and Negative Performance Evaluation

On October 5, 2011, Mastagni, Holstedt, Amick, Miller & Johnsen, acting on behalf of the BART Police Officers’ Association, filed a grievance asserting the letters of discipline and negative performance evaluation violated the POBRA and the MOU between the BPOA and the BART Authority. The firm demanded the removal of the adverse material not entered or maintained in compliance with the POBRA and the MOU.

As referenced in the previous case, the POBRA broadly prohibits employers from entering comments adverse to the officer’s interest into his or her personnel file without providing notice to the employee, including the opportunity to read and sign the instrument containing the adverse material (Gov. Code § 3305). Additionally, the MOU required BART to provide officers “a copy of derogatory matters placed in their official personnel file” and an opportunity to “file a written response to any such material” (MOU, Article 3.2). The MOU mandated that the written response be included with the adverse material in the officers’ personnel files (Id.). Finally, Department policy required that performance evaluations be discussed with the officer and that the officer signs the evaluation prior to the evaluation being included in his or her personnel file (BARTDepartment Policy 1002.1—1002.7). Pursuant to Department policy, the rated officer must also be given an opportunity to file a written response to any adverse comment contained in the evaluation, and the written response must be included with the evaluation in the affected officer’s personnel file (Id.).

Agency’s Belated Notice of Adverse Material Was Insufficient Under POBRA

In this case, three derogatory “Letters of Counseling” were placed in the officer’s personnel file in July 2011 without notifying him, obtaining his signature or offering him an opportunity to respond. The letters were subsequently used in negative performance evaluation of the officer in September 2011. Again, the officer was not notified of the letters or given an opportunity to respond. It was not until October 2011 — three months after the letters were illegally placed in his personnel file — that the officer learned of the existence of the adverse “Letter of Counseling.”

When the officer objected to the material, the Department belatedly withdrew the original letters and performance evaluation but attempted to reissue the letters and performance evaluation verbatim with a new date of entry. The Department’s belated, after-the-fact efforts to issue copies of the “Letters of Counseling” and the negative performance evaluation (with a new date added) to the officer in October were ineffective. The violation of the MOU, Department policy and the officer’s rights under the POBRA occurred in July when the letters were entered into his file without his knowledge and without giving him the opportunity to respond on the merits(Cal. Gov. Code §§ 3305—3506; Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal. App. 4^th 916, 925—26; Comm’n On Peace Officer Standards And Training v. Superior Court (2007) 42 Cal. 4^th 278, 292). The violations of his contractual and statutory rights were compounded when the letters were used as a basis to negatively evaluate his job performance. It was an insufficient remedy for the Department to simply reissue the derogatory letters and performance evaluation after the officer learned about the violations of his rights.

BART Concedes Grievance over Letters of Counseling

On October 28, 2011, Deputy Chief Fairow granted BPOA’s grievance, stating the Letters of Counseling “for which proper notice was not given will be removed” from the affected officer’s file and “new performance evaluation” would be issued to the officer which would not rely on the Letters of Counseling. BART agreed to provide its line supervisors remedial training “to reinforce the need to provide proper notice … for any derogatory and/or adverse material entered into personnel files.”

About the Author

B.J. Pierce is an Associate Attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. She is a former Police Officer and a graduate of Boalt Hall. B.J. Pierce represents public safety officers and labor associations in civil litigation, contract grievances, and critical incident investigations.