PENDING CALIFORNIA LEGISLATION WHICH WILL REDUCE LAW ENFORCEMENT ACCOUNTABILITY
In 2000, the International Association of Chiefs of Police (IACP) issued a publication regarding, among other things, police accountability. In discussing accountability, the publication stated that, “(a)ccountability is built and maintained through diligent attention to many facets of the police enterprise, ranging from entry-level selection practices, to ethics and integrity, training, supervision, misconduct policies, and performance evaluation.” (Emphasis added.)
In 2013, we still see calls for accountability on the part of law enforcement agencies, as well as the individual officers, regarding who is hired to be a peace officer, how they are trained, supervised, evaluated, and disciplined, if necessary. Recently, Oakland became the first U.S. city to willfully surrender authority over its command staff to a court-appointed director. The federal officer, whose official title is compliance director, has wide ranging powers to force Oakland to fully comply with a decade-old reform plan.
Despite these calls for accountability, the California State Legislature is currently considering passage of three bills which could significantly reduce accountability, while increasing potential liability for the negligent hiring, negligent supervision, and/or negligent retention of peace officers.
First, the state assembly is proposing AB 25, which would preclude law enforcement agencies from investigating potential biases on the part of applicants for jobs in law enforcement agencies, by prohibiting the agencies from reviewing the applicant’s social media postings.
The second problematic piece of legislation is SB 388 which would, for all intents and purposes, allow an officer to refuse to answer a question from a supervisor, who arrives at the scene of an incident to which the officer responded, about “what happened?” In fact, the officer could continue to refuse to answer until his or her labor attorney arrives at the location.
And, the final piece of legislation creating concern is SB 313, which would preclude the employing agency, when an officer appeals discipline, from informing the appellate body of significant evidence, namely that the officer might be precluded from testifying in future court cases, as the result of actions taken by the county’s District Attorney.
Each piece of legislation, if enacted, will substantially impede a legitimate, and necessary,law enforcement function which aids in providing the accountability demanded by society.
Background Investigations and Social Media
AB 25, authored by Nora Campos, San Jose, extends to public sector employees protections afforded private sector employees in AB 1844, which was voted into law last year. That bill prohibits private employers from requiring an employee, or prospective employee, to disclose a user name or account password to access social media used by the employee or prospective employee.
The bill states that “(f)or purposes of a claim of negligent hiring, an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer’s failure to search or monitor social media before hiring the employee.” Unfortunately, that language provides no protection from a lawsuit filed in federal court, alleging negligent hiring.
Under the theory of negligent hiring, a victim of an employee’s tortious conduct can sue the employer for failing to take reasonable care in hiring or retaining the employee. Employers have a duty to exercise reasonable care in hiring and employing individuals and to avoid exposing third parties to an unreasonable risk of injury.
In order to assist law enforcement in meeting its obligations regarding accountability, the California Commission on Peace Officer Standards & Training (POST) has minimum standards to be followed when hiring peace officers and/or dispatchers.
Among those standards is the obligation to conduct a thorough background investigation which includes the following ten sources of investigation: 1) Personal identifying information; 2) Relatives and other references; 3) Educational history; 4) Residential history; 5) Employment history; 6) Military history; 7) Financial history; 8) Legal history; 9) Driving history; and, 10) Other topics related to assessing moral character.
Nonetheless, and despite all the litigation claiming negligence in hiring individuals as peace officers, the Assembly Judiciary Committee approved AB 25, extending those protections to public sector applicants and refused to provide any law enforcement exception.
If, in fact, an applicant for a peace officer’s position, had expressed racial, sexual or religious biases on his or her social media, or engaged in postings which reflect poorly on his or her character, and an agency hired that person without being able to conduct the necessary and appropriate research on their biases and/or character, the potential for litigation, as well as liability, is substantial.
We already delve into private areas of such applicants because of the authority and power society bestows on our law enforcement officers – it is a necessary part of conducting a thorough background investigation.
Both the California Police Chiefs’ Association (CPCA) and the California State Sheriffs’ Association (CSSA) are on record opposing this legislation.
CPCA’s legislative advocate, John Lovell, testified before the Assembly Judiciary Committee on April 16, 2013, stating that “when you hire someone to be a peace officer, you’re giving them a gun, . . . a badge, . . . [and] the right to take away someone’s freedom.” The public’s interest in “screening applicants for those types of positions is far greater than when you are hiring someone in the private sector.”
Those concerns apparently fell on deaf ears and the Committee, refusing to provide for a law enforcement exception, voted out the bill.
Supervisory Obligations Thwarted by Legislation
The Public Safety Officers’ Procedural Bill of Rights Act (POBR), Gov. Code 3300-3312, provides procedural protections to officers who are the subjects of personnel investigations of alleged misconduct. However, SB 388, authored by Senator Ted Lieu of Los Angeles County, would apply all of the protections of POBR to officers and firefighters, any time there is an “interrogation” of an officer or firefighter, “whether or not an investigation of that public safety officer or firefighter is being conducted.” An interrogation is defined by dictionaries as “a question” or “an inquiry.”
As such, this legislation can result in officers refusing, for example, to answer a sergeant’sjob related question without a labor representative or attorney being present, which is one of the protections provided by POBR. Is the sergeant asking the officer “what happened” at a scene to which the officer responded, an interrogation as envisioned by Sen. Lieu? If the officer claims it is, then he or she would be entitled to representation and the supervisor would be unable to ascertain what occurred until that representative was present.
The potential for constant haggling over whenever an officer is being “interrogated” and, therefore, entitled to refuse to respond, is mindboggling.
POBR was implemented to provide procedural protections for officers being investigated for alleged misconduct; it has been in place for over 35 years and very effective. The current language in Gov Code 3303(i) also states that the provisions of POBR, including right to representation, “. . . shall not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer. . .”
However, SB 388 would totally change the intent of POBR; this legislation is contrary to 35 years of case law.
Imagine the absurdity of law enforcement agencies not being able to conduct routine, normal, supervision. What possible reason or justification could exist for restricting law enforcement from inquiring of officers as to what occurred at some crime scene without their labor attorney being present?
How can anyone, especially in light of the horrors of Aurora, Colorado or Sandy Hook or Boston, justify enacting legislation which precludes supervisors from asking officers “what happened?” For those of us who strive to represent law enforcement officers and entities, this legislation is impossible to fathom.
Barring Evidence from Being Heard in a Disciplinary Appeal
SB 313, authored by Senator Kevin DeLeon of Los Angeles county (and co-authored by Senator Lieu), would prohibit the introduction of any evidence in an administrative appeal of any punitive action, or a civil proceeding between the public safety officer and an office or public agency, that the officer’s name was placed on a “Brady” list by the county District Attorney. Placing an officer’s name on a “Brady” list is usually done by the DA based upon his or her conclusion that an officer has a history of dishonesty.
Once placed on a “Brady” list that information must always be provided to the defense by the prosecution, if that officer is to testify as a material prosecution witness. That obligation arises from the U.S. Supreme Court decision, Brady v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to disclose to the defense any evidence which could assist the defense, including information which can be used to challenge the credibility of a material prosecution witness. In many instances, prosecutors will not file cases brought forward by a “Brady” officer, absent independent corroborating evidence, due to the difficulty of overcoming the credibility issue.
As such, one of the most essential functions of a peace officer is, if not lost, severely damaged – namely, the ability to testify as part of the prosecution’s effort to secure a conviction of an accused.
However, SB 313 would preclude the agency from bringing that crucial piece of information to the administrative body hearing an appeal of discipline, brought by an officer. This proposed legislation is designed to prevent an appellate body from hearing relevant evidence about the inability of an employee to perform an essential part of his or her job.
One of the most significant aspects of such a disciplinary case, for the employer, is to explain to a personnel board or civil service commission why police officers are held to such a high standard, and why they are terminated from employment for lying, but other employees may not be so disciplined.
As part of the employer’s administrative case, those of us who represent police chiefs and/or sheriffs, try to have a prosecutor testify, not about the specific case but, rather, about the impact on the officer’s ability to be a prosecution witness if the charge of lying is upheld but, nonetheless, the officer is ordered returned to duty.
If this bill passes, law enforcement administrators would be precluded from presenting such crucial and relevant evidence during the employee’s appeal.
Again, the concern of litigation and liability rears its head. Negligent retention is a legal cause of action wherein it is alleged that there is a breach of an employer’s duty to be aware of an employee’s unfitness and to not take corrective action through coaching, reassignment, or termination. To deny the police chief or sheriff the ability to produce all relevant evidence to explain and justify its disciplinary decision is contrary to the basic principles of public employment law.
There are, in fact, serious concerns about the “Brady” process. They include the lack of uniformity of decisions by prosecutors, as well as a lack of due process before one is declared a “Brady” officer. There are ways to address those concerns, but to deny significant evidence being presented to an appellate body is not the way to accomplish that goal.
As counsel to police chiefs and sheriffs, I have been involved in attempts to rectify those inequities, but passing legislation which keeps crucial evidence from being heard during an appeal violates public policy and ignores the public’s safety as well.
HOW THIS AFFECTS YOUR AGENCY
These three pieces of legislation, if they pass, can have, perhaps, one of the most detrimental impacts on law enforcement in California in years.
AB 25 will effectively prevent an agency from completing a comprehensive and detailed background investigation on applicants for peace officer positions. It is known that criminal defense attorneys check social media sites to determine if there is any information they can use to challenge the officers involved in the cases they are defending. It is basic common sense that law enforcement agencies should be able to delve into the character and background of those applicants to whom we are going to invest the awesome power of a peace officer. This legislation will prevent a significant part of that from happening.
SB 388 could hamper law enforcement supervisors and managers from asking the most basic questions of our officers without being compelled to wait, if the officer so demands, for his or her labor representative or attorney to arrive at a scene before responding to that most common question – “what happened?” It is impossible to fathom the rationale for applying the procedural protections of POBR in circumstances where, as the legislation itself states, an investigation of the officer is not being conducted.
Finally, SB 313 is legislation specifically designed to keep relevant evidence from fact finders. Law enforcement has, for years, complained that laws keep evidence from the courts when suspects are being prosecuted. Now, that same approach is being applied to keep evidence from a personnel board or civil service commission.
If any, or all of these legislative acts take effect, advice and guidance from your agency’s attorney will be most important in terms of how to approach the implementation of these laws. Implementation of these laws will be difficult, contrary to sound principles, adverse to the public’s interest and, perhaps, its very safety, and that’s unfortunate. However, the Legislature can prevent this from happening.
As always, if you wish to discuss these issues in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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