Vol. 17 No. 2- Confidentiality Of Background Information

April 2, 2002

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer



The California Supreme Court, on Friday, March 29, 2002, issued its opinion in the case ofCounty of Riverside v. Superior Court (Madrigal), 2002 DJDAR 3387, holding that a probationary peace officer may see his/her background investigation, which was conducted AFTER being appointed a probationary officer. The Court also ruled, however, that under certain circumstances one can waive his or her right to see such information.

This office submitted an amicus brief on behalf of CPCA arguing that the written opinion of the background investigator was confidential and, futher, that if redacting names of confidential sources is insufficient to protect their identity, a summary can be utilized. The Court, however, did not address these issues, in detail, except to state that the investigator’s memo was subject to review by Madrigal.

As such, it must be remembered that if one wants a briefing from a background investigator, as to his or her opinion, that communication is best done verbally – not in writing.

The Court stated, several times, that the facts of this case were unique – the absorbing of a municipal police agency by the county sheriff. As such, there is an argument which could be made that this is a “fact specific” decision. One part of the ruling, however, is of significance in all cases.

The Court held that once the Perris P.D. officers were appointed as probationary deputy sheriffs, all Peace Officer Bill of Rights protections applied. Therefore, “adverse comments” could not be placed in the officer’s personnel file, without the officer being given an opportunity to review it. Information in the background, resulting in his being rejected from probation were, obviously, adverse comments.

As such we, once again, must point out another one of the problems with appointing someone as a probationary peace offcer, subject to completion of the background. Once appointed, the officer is fully protected under G.C. 3300-3311.

The Court pointed out that, “…if the County had completed its background investigation beforehiring Madrigal, and if that background investigation had caused the County to not hire Madrigal, Madrigal would now have no right to view documents in the investigation file.” (Emphasis in original.) The key factor was the protections provided under the Bill of Rights Act.

The Court went on to hold that, under the circumstances of this case, which included at least four specific waivers of the right to review the information, the officer’s waiver of his right to see the material was valid and binding. The Court also stated that, “(w)e conclude … that Madrigal knew or should have known of the consequences of his waiver. Madrigal was an existing peace officer who was in the process of applying for a new peace officer position.”

As always, we urge that you take no action in the legal arena without first conferring with your department’s legal advisor. As to the material discussed above, please feel free to call Martin J. Mayer at (714) 446-1400 or via E-mail at mjm@jones-mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]



Vol.17#1 Website