Vol. 18 No. 11- Peer Support Counselor Privilege

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer & Dean J. Pucci

AB 960
“PEER SUPPORT COUNSELOR PRIVILEGE”

May 21, 2003

As a response to client concerns regarding proposed legislation, AB 960, we offer the following analysis of the impact of such legislation. AB 960, in short, will provide designated “peer supporters” (not counselors) with the same confidentiality privilege as exists in the priest-penitent, doctor-patient, and attorney-client relationships. Peer supporters would be entitled to claim this privilege and refuse to disclose information provided to them from a “peer”. Although the proposed legislation contains certain exceptions to this general rule of non-disclosure, the legislation presents a host of unresolved issues of profound importance to law enforcement management.First, the comparison of this privilege to other professional relationships sharing a similar privilege, is inappropriate and inaccurate. The primary responsibility of an officer (especially a supervisor and/or manager) of a law enforcement agency is to the agency and thepeople which it serves. In all other referenced relationships, the professional’s responsibility is to the penitent, patient, client, etc.

Secondly, legislation as broad as this precipitates litigation for the purpose of interpreting the language and/or legislative intent. AB 960 has so many exemptions from the confidentiality protection, all based on the type of information shared with the peer supporter, that it creates the potential for ongoing litigation in order to determine whether, in any set of circumstances, the “supporter” should have disclosed the information shared by the public employee.Thirdly, it is unclear whether it would be considered notice for liability purposes, when a peer supporter who is a supervisor or manager, learns of information which would require the department to take action, and fails to share it with management. Additionally, each department will be required to define what subject matters are not protected with confidentiality and then train its officers as to that definition.

This legislation is moving through the legislative process with little attention being paid to the concerns referenced herein. Currently, there are numerous support mechanisms in place for peace officers in existence. Virtually every agency has a chaplaincy program, an employee’s assistance program, and an existing peer support program (which have operated for years without the need for confidentiality). Therefore, if AB 960 passes, we feel obligated to advise our clients to reconsider the propriety of having a peer support program that raises so many concerns.

Should you have any questions or wish to discuss this matter in greater detail, please feel free to call Martin Mayer or Dean Pucci at 714-446-1400 or at mjm@jones-mayer.com or djp@jones-mayer.com