Court Of Appeal Clarifies Definition Of “Materials” Under Pobr

JENNIFER R. LOFLIN
Associate Attorney
Castillo Harper, APC

The right to fair and complete notice and disclosure in the context of an administrative investigation and subsequent proceedings has been defined in the law since the long-standing Skelly decision back in 1975. Originally, in Skelly, the Supreme Court stated that at a minimum, the accused officer is entitled to be provided the materials upon which the administrative action is based, prior to any pre-deprivation due process (Skelly v. State Personnel Board [1975] 15 Cal.3d 194, 215).

Since the right to discovery was initially established in Skelly, other cases such as Pasadena Police Officers Assn v. City of Pasadena ([1990], 51 Cal.3d. 564) further defined specifically when an officer or deputy has the right to receive the materials. The court in Pasadena held that the peace officer’s right to inspect and view all materials and documents only arises after the administrative interview/officer’s interrogation has taken place. In addition to case law, the right to discovery and the items to be turned over to the officer are specifically laid out in the Public Safety Officers’ Procedural Bill of Rights Act (POBR), California Government Code § 3300, et seq.

Recently, on May 3, 2018, in the case of James Davis v. County of Fresno et. al. (F073151), the Fifth District of California Court of Appeal issued and certified for partial publication an opinion that further expanded the definition of the “materials” to be turned over to the officer under POBR section 3303(g), to include incident reports and transcripts of witness interviews that were attached to a memorandum written by a special probation investigator.

James Davis was a supervising juvenile correctional officer who had been employed and in good standing with Fresno County since 2002, even twice receiving the Probation Department’s “employee of the month” award. However, in October 2008, one month after receiving one of the awards, Davis filed a complaint with the FBI alleging that a county employee had used excessive force. In February 2009, Davis was placed on administrative leave for alleged misconduct. However, the termination was overturned by the Commission in March 2010, when Davis alleged the County acted in retaliation against him for filing the FBI complaint.

The administrative action at issue in the Davis case stemmed from a 2012 internal complaint submitted by a subordinate correctional officer, Lonny Blue, alleging retaliatory-type conduct on the part of Davis that made it difficult for this officer to carry out his duties. A special probation investigator, Glenn Johnson, was assigned to the investigation of Blue’s complaint. As part of that investigation, several witnesses were interviewed and on September 12, 2012, Johnson completed a memorandum to the chief probation officer. That memo was 20 pages long and specifically referred to attachments such as transcripts, interviews, etc., that were noted in the memorandum as being “tabbed” for reference. None of these attachments was provided to either Davis or his counsel; only the memorandum itself was turned over, despite multiple requests by Davis that the “tabbed” attachments be turned over and that failure to do so was a violation of his due process and POBR rights.

As a result of the investigation, Davis was dismissed from County employment and his administrative appeal was denied. Davis filed a petition for writ of administrative mandamus, asking the superior court to set aside the Commission’s decision. However, the superior court denied Davis’ petition. Davis then appealed the superior court’s denial to the Fifth District of California Court of Appeal. The appellate court reversed the superior court’s decision, in part. The issues heard before the appellate court were: Did the County commit a due process violation by not turning over the tabbed attachments to the September 2012 memorandum to Davis? And was that same failure to disclose the attachments a violation of POBR, specifically section 3303(g)?

In the unpublished portion of the opinion, the appellate court upheld the superior court’s finding that no due process violation had occurred. In making this ruling, the appellate court relied on the reasoning in Gilbert v. City of Sunnyvale ([2005] 130 Cal.App.4th 1264) that the requirements of due process in the context of a Skelly hearing require an explanation of the employer’s evidence and notice of the substance of relevant supporting evidence sufficient to enable the officer to respond at the pre-termination stage (Id. at 1280). In applying the Gilbert requirements for satisfaction of due process, the appellate court found that Davis could not argue, nor did he have any evidence to support, a claim that his response or ability to respond at the Skelly was hindered by his lack of access to the attachments (i.e., interviews and transcripts).

However, the appellate court did define the term “report” used in section 3303(g) to include materials attached to an internal affairs investigation report. In the published part of the opinion, the court found a POBR violation of that same section on the part of the County for failing to turn over all the “tabbed” attachments to Davis and/or his counsel. In its discussion, the appellate court’s analysis of the term “report” included a public policy discussion in which the court agreed that in order to preserve the integrity of a report itself, and in a larger context, to inspire a public or community confidence in the authenticity of these investigations, it is heavily favored to be inclusive in their analysis of the term “report.” Therefore, the appellate court remanded the Davis case back to the superior court, where remedies for the POBR violation could be considered.
In conclusion, the published portion of the Davis case established that Government Code section 3303(g) “Documents to be provided” is expansive and includes any documents, attachments or exhibits that are attached to an internal affairs memorandum. Further, failure to turn over these documents is in fact a POBR violation subject to all the remedies available under POBR Government Code section 3309.5, et. seq.

About the Author

Jennifer R. Loflin is an associate attorney with Castillo Harper, APC. She handles administrative and criminal defense, and family law matters.