Vol. 27 No. 18 – Use Of “Pitchess” Motions In Administrative Disciplinary Appeals Is Permitted


Contrary to what had been believed to be established law, the California Court of Appeal ruled that a hearing officer, in an administrative appeal of discipline of a correctional officer, “has the authority to grant a Pitchess motion.” On September 28, 2012, the 4th Appellate District held, in Riverside County Sheriff’s Department v. Stiglitz, et al, that the prior court decision in Brown v. Valverde, 183 Cal.App.4th 1531 (2010) applied only in very limited circumstances, and was not applicable in the instant case.

Kristy Drinkwater was terminated from her position as a correctional deputy for falsifying her time records in order to obtain compensation to which she was not entitled.  She appealed her termination pursuant to an MOU, then in effect, between the County of Riverside and the Riverside Sheriffs’ Association (RSA).  “The MOU . . . provided for a procedure by which correctional deputies could appeal the termination of their employment, as provided for in Government Code section 3304, subdivision (b).”  Section 3304(b) is part of the Public Safety Procedural Bill of Rights Act (POBR) and states, in part, “that no adverse employment action may be taken against a public safety officer without giving the officer the opportunity for a hearing.”

Ironically, as the Court notes, “POBR does not apply to correctional officers, who are not public safety officers.  (Pen. Code, § 831.5.)  However, the MOU, which is a binding contract between the RSA and the County, . . . provides the same protections for correctional deputies.”  If the County had not agreed to extend POBR to non-public safety officers, as set forth in the statute, Drinkwater would not have been entitled to this process.

“Drinkwater asserted that the penalty of termination was disproportionate to her misconduct because other Department employees who had falsified time records had received lesser punishment.  She submitted a motion to hearing officer Jan Stiglitz for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct.”  Ultimately, after identifying specific employees whose records she sought, Stiglitz found that good cause existed and granted her discovery motion.

It should be noted that “she sought production only of records which had been redacted to conceal the identities of the employees involved.”  What she asked for, in essence, was evidence of disparate treatment of others who were accused of similar misconduct, but did not ask for the disclosure of their names.  Furthermore, in an effort to provide additional protection for those officers’ right of privacy, when the hearing officer granted her motion he “ordered the Department to produce the requested records for his in camera review.” (Emphasis added.)

The Sheriff’s Department filed for a writ of mandate to compel Stiglitz to vacate his decision that good cause existed but did not challenge his authority to rule on the motion.  The case of Brown v. Valverde had been decided shortly before the superior court was to rule on the petition.  The Department brought it to the court’s attention “and argued, for the first time, that only a judicial officer can rule on a Pitchess motion.”  [Pitchess v. Superior Court, 11 Cal.3d 531 (1974) was codified in Evidence Code 1043 et al and established procedures to discover, otherwise, confidential peace officer personnel information.]

Pitchess Motions and Administrative Hearing

The Department argued, among other things, that disclosure of the records of other officers would cause irreparable harm.

The Court of Appeal stated “that if a hearing officer in an administrative proceeding lacks the authority to rule on a Pitchess motion at all, then producing confidential personnel files for the hearing officer’s review would constitute irreparable harm to the employees whose privacy would be violated.”

The Court identified the issues in dispute as, among others, (1) whether Pitchess discovery is available in an administrative proceeding; and (2) whether only a court, rather than a hearing officer in an administrative hearing, can decide a Pitchess motion?  In discussing the holding in Brown, the Court ruled that its decision applied only to a very limited administrative hearing, specifically, “a Department of Motor Vehicle (DMV) “administrative per se” hearing.  An administrative per se hearing is one in which a hearing officer . . . determines whether a driver’s license must be suspended following an arrest for driving with a blood alcohol level of 0.08 percent or greater.”

The Brown case “does not stand for the proposition that Pitchess discovery is not available in any type of administrative proceeding.  Rather it holds that although Pitchess discovery is available in some administrative proceedings, it is not available in a DMV administrative per se hearing.”  Additionally, “the reasoning Brown employs to hold that Pitchess discovery is not available in a DMV administrative per se hearing does not apply to a Government Code section 3304, subdivision (b) hearing.”

The Court of Appeal stated that, “personnel records of other officers may be relevant in a section 3304(b) hearing where, for example, the defense is that the punishment imposed is excessive in comparison with the punishment imposed on other personnel in similar circumstances.  While there is “‘no requirement that charges similar in nature must result in identical penalties’” with respect to disciplinary treatment of similarly situated public employees . . . disparate treatment is nevertheless a recognized defense that may be raised in a disciplinary hearing in an effort to persuade the agency or the hearing officer that less severe discipline is warranted.”  The only way this could be accomplished would be through the use of a Pitchess motion.

The Court, noting that section 1043 “provides that a Pitchess motion is to be filed in the ‘appropriate court or administrative body,” it then engaged in a review of the language in Evidence Code section 1045 and the multiple references to actions by a “court” following the filing of a Pitchess motion.  Ultimately, it finds that the Brown court did not address a crucial issue:  “If a Pitchess motion can be filed in an administrative proceeding, but can be decided only by a sworn judicial officer, how does a party seeking Pitchess discovery in an administrative proceeding invoke the jurisdiction of a court to rule on the motion?”

The Court concluded, therefore, that “this is strong evidence that in spite of the language in Evidence Code section 1045, the Legislature did not intend that Pitchess motions may be decided only by courts.”  Additionally, the Court held that due process required access to personnel records in administrative proceedings in order to provide the appellate “the opportunity to present a meaningful defense,” which could include the claim of disparate treatment.

As to the other officers’ right of privacy, the Court held that “(w)e are not persuaded that protection of the noninvolved officers’ privacy interests requires a blanket prohibition on the use of their personnel records in a section 3304(b) hearing . . . .”  Noting that “the statutory scheme includes ample protection for officers’ legitimate privacy concerns,” either the agency in control of the records to be reviewed, or the officer involved, can ask for “judicial review of a hearing officer’s order for production of officer personnel records before the records are actually produced.”  (Emphasis added.)

It also appears that the agency or affected officers could request that the files be reviewed by the hearing officer “in camera” and names redacted.  If those requests were to be denied then, as noted above, a petition for a writ could be filed before any information is released.  Furthermore, since “administrative mandamus is available to obtain judicial review of a hearing officer’s ruling on a Pitchess motion before the personnel records are produced [it] allays any concern that an administrative hearing officer who is not trained in the law may not be qualified to rule on a request for discovery of confidential materials.”


As of now, it appears that a Pitchess motion can be brought at an administrative hearing when relevant and, if good cause is found, the personnel files of other officers might be subject to review by an administrative hearing officer.  From our perspective, in order to secure privacy rights for those other peace officers, in their personnel information, the employer should always request that files be reviewed in camera, that only redacted information be provided, and a protective order be issued preventing use of that information in any other proceeding or manner.

It is also important to remember that no two people are the same.  Just because different discipline was imposed on different people for similar misconduct, does not, in and of itself, show disparate treatment.  As an example, officer #1 has been on the job for 13 or 14 years with an unblemished record, while the currently disciplined officer has been employed for only 4 or 5 years and has other discipline in his/her package.  As the Court noted, “there is ‘no requirement that charges similar in nature must result in identical penalties’ with respect to disciplinary treatment of similarly situated public employees. . . .”

In addition to the RSA, several labor law firms which represent peace officers filed amicus briefs supporting the right of the disciplined officer to gain access to the confidential personnel files of other peace officers.  It seems to be a conflicted position since the privacy rights of those other members of POA’s and DSA’s were placed in potential jeopardy.

On the other side, the California State Association of Counties and the California League of Cities filed amicus briefs supporting the Sheriff’s Office and its desire to protect that confidentiality.  In addition, the firm of JONES & MAYER filed an amicus brief on behalf of the California State Sheriffs’ Association, in an effort to continue the protection of personnel records of officers.  The basis of each of those briefs was the decision in Brown v. Valverde.  Although this case distinguished the Brown decision, it would appear that enough of an issue has been raised that, if a petition were filed with the California Supreme Court, it might accept the issue for review.

Finally, as pointed out above, this process [a 3304(b) administrative appeal] is provided through POBR and the appellant in this case would not be protected by POBR except for the County extending those rights to non-public safety officers.  It should always be considered seriously before such action is taken.  The Legislature specifically identified those who are covered by POBR and there was a reason for that.

In all matters which involve the law, it is extremely important to secure advice and guidance from your agency’s legal advisor before taking action.  As always, if you wish to discuss this case in greater detail, please do not hesitate to contact me at (714) 446-1400 or via e-mail atmjm@jones-mayer.com.

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