CLIENT ALERT MEMORANDUM
July 10, 1999
To: All Police Chiefs and Sheriffs
From: Paul R. Coble
PRIVATE INVESTIGATOR LICENSE NEEDED FOR I/A
We recently encountered the issues of whether an outside consultant retained to conduct an internal affairs investigation must have a private investigator license issued by the Department of Consumer Affairs. In the matter in which this issue arose, there is an assertion by counsel for the employee that a license was required, and that since the consultant/investigator did not possess the necessary license, the product of the investigation — including most notably the accused officer’s statement in which untruthful statements are alleged to have been made — must be suppressed.
For the reasons set forth below, we find that where a consultant is retained to conduct an internal investigation, such consultants must either be an attorney or possess a private investigator license, but that there is basis for the suppression of an employee’s statements made in the context of an investigation by an unlicenced investigator.
Business & Professions Code §7521 refers to the necessity of a private investigator license when conducting an investigation on behalf of any employer. This statute used to require a license only when conducting an investigation for a private employer. However, in 1994 the statute was amended to delete the word private, thus making the licensing requirement applicable to investigations done even for a public employer. There is an exception for investigations done by an attorney admitted to practice in California. Business & Professions Code §7522(e).
However, no where in any of the statutes governing private investigators is there a requirement or even an allowance for either the suppression of information gained through any unlicenced investigation or a private cause of action arising from any such investigation. To this end, we note that Business & Professions Code §7520, which requires a license to conduct any business regulated by that Chapter, was enacted to regulate and control the business of private investigations and detectives in the public interest. Kennard v. Rosenberg, (1954) 127 CA 2d 240, 273 P.2d 839. Furthermore, while Business & Professions Code §7523.5 provides for injunctive relief from violations of the licensing requirements, this is not by private cause of action, but rather by petition filed by the Bureau of Security and Investigative Services, Department of Consumer Affairs.
One may look by way of analogy at similar statutes governing the practice of law as set forth in Business & Professions Code §6000, et seq. In doing so, one will note that, while the law very clearly requires licensing – i.e., admittance to the bar – in order to practice law, a violation of this requirement does not create a private cause of action.Mickel v. Murphy, (1957) 147 CA2d 718, 305 P.2d 993; 76 Op.Atty.Gen. 193, 8-30-93.
Thus, we find that the body of law governing licensing of private investigators was enacted to regulate a type of business in order to protect the public interest. Where an employee seeks to advance what can only be termed a very private interest in a personnel proceeding, he or she does not seek to regulate a business, but rather to protect him/herself from the consequences of his/her own conduct and his/her own statements about that conduct. This is a private as opposed to a public concern.
Secondly, the body of law governing licensing of private investigators does not anywhere provide for any private cause of action. If a violation of these laws is to be prosecuted, it is by the government. Business & Professions Code §7523(f). An individual employee cannot do so. If an injunction is to be had, it can only be through a petition brought by the government. Business & Professions Code §7523.5. An individual employee cannot do so.
/ WHAT DOES THIS MEAN FOR YOUR DEPARTMENT?
If your agency is going to retain an outside consultant or investigator to conduct any sort of investigation, the person retained must be either licensed as a private investigator or be an attorney admitted to practice in California. While as noted above the subject employee may not have a private cause of action to enforce this requirement or to seek injunctive relief, it is nonetheless a misdemeanor for an unlicenced person to work as a private investigator, or for anyone else to knowingly engage an unlicenced private investigator after notice from the Bureau of Security and Investigative Services of the private investigator’s unlicenced status. Business & Professions Code §7523.
Therefore, agencies are best advised to ensure compliance with the law by retaining only licensed investigators or attorneys to conduct internal investigations.
Finally, we suggest that you always confer with your department’s legal advisor in addressing these issues. Should you have any questions or wish to discuss anything set forth above, please do not hesitate to call Paul R. Coble at (562) 590-8280.
PRC/sgc
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