CLIENT ALERT MEMORANDUM
March 15, 2000
To: All Police Chiefs and Sheriffs
From: Paul R. Coble
FURTHER AMENDMENTS TO PENAL CODE ‘832.5 – REMOVAL OF CERTAIN CITIZEN COMPLAINTS
In 1997 we issued a Client Alert Memo regarding the then current amendments to Penal Code ‘832.5(c), which dealt with the removal, from an officer’s primary personnel file, of complaints deemed by the Department to have been frivolous as that term is defined in Code of Civil Procedure ‘128.5.
Penal Code ‘832.5 was further amended to require removal, from the primary personnel file, of complaints, or portions of complaints, found by management not only to have been frivolous, but also those classified by management as having been unfounded or exonerated. Section 832.5(d)(2) & (3) defines unfounded and exonerated to mean, respectively, “the investigation clearly established that the allegation is not true” and “the investigation clearly established that the actions of the peace officer that formed the basis for the complaint are not violations of law or department policy.”
Frivolous, unfounded or exonerated complaints, or portions of complaints, cannot be used for punitive or promotional purposes (‘832.5(c)(1)), but may be used to identify officers in need of counseling or training (‘832.5(c)(2)). However, the primary personnel file shall not contain reference either to a complaint removed pursuant to these requirements, nor to the existence of the separate file in which frivolous, unfounded or exonerated complaints are stored.
The removal of frivolous, unfounded or exonerated complaints, or portions of complaints (as determined by the employer), shall be removed from the primary personnel file and placed in a separate file prior to any official determination concerning promotion, transfer or disciplinary action. However, such complaints or portions of complaints so removed and placed in a separate file, shall be considered part of the personnel file for purposes of the Public Records Act (Govt. Code ‘6250, et seq.) and Evidence Code ‘1043 (Pitchess motions). Penal Code ‘832.5(b) & (c).
For purposes of these requirements, the primary or general personnel file is defined as containing the primary records specific to the officer’s employment, including evaluations, assignments, status changes, and imposed discipline. Penal Code ‘832.5(d)(1).
Remember that these requirements for removal from the primary file and placement in a separate file pertain only to complaints, or portions of complaints, which the department has determined to have been frivolous, unfounded or exonerated. A suggestion would be to make this determination at the time that the complaint is originally adjudicated, and then to effectuate this separate storage at that time. This will serve to avoid inclusion in the primary personnel file of any otherwise prohibited complaints, or portions of complaints, at the time that promotional or assignment decisions are being made.
As always, before taking any action regarding legal matters, we urge that you confer with your department’s designated legal advisor. Should you wish to discuss this matter in greater detail, please do not hesitate to contact any of us in the office at (562) 590-8280.
PRC/sgc
*********
1a-Vol15#03 Website