CLIENT ALERT MEMORANDUM
August 3, 2000
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
PENAL CODE SECTION 135.5
In late 1998 the legislature passed Senate Bill 1600, on an urgency basis, and added Section 135.5 to the Penal Code stating that:
“Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceeding against a public safety officer, for the purpose of harming that public safety officer, is guilty of a misdemeanor.”
Government Code § 821.6 creates general governmental immunity for actions by public employees instituting and/or prosecuting disciplinary proceedings. However, the legislative comments in Senate Bill 1600 state that “while this bill does not repeal, modify or specifically address the `immunity’ provided by Government Code § 821.6, it does introduce the risk of a misdemeanor charge for those public employers that would tamper with or destroy evidence … associated with a disciplinary hearing against a public safety officer. To this extent it is thought to respond to a specific void in existing law and deter abuse of Government Code § 821.6.”
This law was sponsored by the Association for Los Angeles Deputy Sheriff’s as an outgrowth of an appellate court decision, Benach v. County of Los Angeles 60 Cal.App.4th 637 (which was ordered depublished March 11, 1998.) In that case Deputy Benach was terminated as a result of an altercation with another deputy. The trial court found that over 40 letters of commendation had been removed from Benach’s personnel file; that audio tapes of interviews conducted during the internal affairs investigation had been concealed; that portions of them had been deliberately erased; and that department employees had introduced incomplete and misleading records at the disciplinary appeal hearing.
It is important to note that there is no definition of the term “relevant evidence” and therefore leaves all law enforcement managers with the possibility of a criminal complaint being filed against them if an allegation is made that “relevant evidence” was altered, tampered with, concealed or destroyed. One concern, for example, is whether “relevant evidence” could be considered notes of the IA investigator which are subsequently reduced to a formal writing (the I.A. report), in the same manner that peace officers investigating criminal activity make notes which are then reduced to a crime report.
Furthermore, would a discussion between a Chief or a Sheriff with his or her command staff regarding appropriate levels of discipline be considered “relevant evidence” which must be disclosed to the subject employee. If yes, it appears that Chiefs and Sheriffs might be reluctant to engage in such discussions even though the purpose would be to gain input from their command staff in an effort to assist them in analyzing an I.A. investigation, as well as analyzing an appropriate level of discipline, if discipline is to be imposed.
We have already been informed that issues regarding Penal Code § 135.5 are being raised by attorneys representing officers. If would appear necessary, therefore, for Chiefs and Sheriffs to bring this concern to the attention of their IA investigators and to review with their appropriate legal counsel what information and/or documents must be provided to the subject employee.
Even if it is subsequently shown that there was no intentional alteration, etc. of evidence it could subject a Chief, Sheriff or IA investigator to a complaint being filed with their local district attorney accusing them of committing a crime. We believe it is highly unlikely that a D.A. would file a misdemeanor complaint, absent extremely strong evidence proving such intentional actions, but that does not prevent a complaint being filed with the prosecutor which thereafter becomes public record.
The manner in which internal affairs investigations are conducted continues to be subject to specific and intense scrutiny and requires law enforcement management to ensure, to the best of its ability, that all the rights afforded its peace officers are protected and applied.
As always, we urge that you confer with your Department’s legal advisor on this as well as other matters involving application and/or interpretation of the law. In the instant case it would obviously reduce the possibility of a prosecutor filing a misdemeanor complaint if it can be shown that the Chief or Sheriff conferred with appropriate legal counsel as it proceeded through the investigation stages, and ultimately the disciplinary process, involving peace officers. Should you wish to discuss this in greater detail, please do not hesitate to contact our office at (562) 590-8280.
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MJM/sgc
Vol.15#07.PC_135.5 Website