USE OF “PITCHESS” MOTIONS IN ADMINISTRATIVE DISCIPLINARY APPEALS IS PERMITTED
On December 1, 2014, the California Supreme Court decided the case of Riverside County Sheriff’s Department v. Stiglitz (Drinkwater) (E052807). California law enforcement has been anticipating this decision for the past year.
The Supreme Court upheld the Court of Appeal decision permitting a “Pitchess” motion to be filed in an administrative disciplinary appeal. Drinkwater was a former officer who sought information from the disciplinary files of other officers to support a disparate treatment claim.
In addition, the Court held that a labor arbitrator is well equipped to handle a Pitchess motion in the same way as a judicial officer, including conducting the in-camera review of the records.
Facts
The Riverside County Sheriff’s Department (the Department) fired Deputy Kristy Drinkwater for falsifying her payroll forms. A memorandum of understanding (MOU) between the Riverside Deputy Sheriffs’ Association (DSA) and the county provided for an administrative appeal. The parties chose arbitrator Jan Stiglitz as the hearing officer.
Drinkwater intended to urge a disparate treatment defense, claiming that others had committed similar misconduct but were not fired. Accordingly, she sought discovery of redacted records “from personnel investigations of any Department employees who had been disciplined for similar acts of misconduct.” (See Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 105-106; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 229-231.)
Limiting her request to events during the previous five years, she sought incident summaries, the rank of the officer, and the discipline imposed. The Department objected, arguing in part that Drinkwater could not satisfy the requirements for a Pitchess motion under Evidence Code sections 1043 and 1045, and could not establish the good cause required for discovery.
Stiglitz denied her motion, without prejudice, ruling the Department need not search its records for similar disciplinary cases. Instead, Drinkwater was obligated to identify particular officers whose records she believed were relevant to her claim.
Drinkwater renewed her motion, supported by her counsel’s declaration that 11 named officers had allegedly committed similar misconduct, but received little or no discipline. Stiglitz ordered production of the records of the 11 officers for an in camera review.
Pitchess Motions and Administrative Hearings
Evidence Code section 1043, subdivision (a) reads in part: “In any case in which discovery or disclosure is sought of peace or custodial officer personnel records . . . , the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body . . . .” (Italics added.)
The expansive language of Evidence Code section 1043, subdivision (a) does two things. First, it makes clear that Pitchess motions may be brought in both civil and criminal cases. (See Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 293 (Peace Officer Standards); Pen. Code, § 832.7, subd. (f).) Second, Evidence Code section 1043 specifically states the motion should be filed in the appropriate court “or administrative body.”
The department argued that Evidence Code section 1045 repeatedly refers to “the court” as the entity that must conduct an in camera review, determine relevance, and issue appropriate protective orders. It argued that because “the court” appears five times in Evidence Code section 1045, these references trump the single reference to “administrative body” in Evidence Code section 1043. The department argued further that, although Evidence Code section 1043 mandates that Pitchess motions be filed in “the appropriate court or administrative body,” Evidence Code section 1045’s repeated reference to “the court” means that only judicial officers may rule on them.
The Court of Appeal held that their argument failed for several reasons. First, it simply reads “administrative body” out of Evidence Code section 1043. If the Legislature intended that only the superior court could rule on Pitchess motions, it could easily have said so. There is no discernable reason why the Legislature would expressly provide in Evidence Code section 1043 that a Pitchess motion may be filed before an administrative body, then implicitly suggest in Evidence Code section 1045 that such a body was powerless to act upon the motion because only “the court” may conduct the required in camera review. Indeed, such an interpretation would mean the Legislature had expressly provided for the doing of an idle act: filing a motion in a body not authorized to rule on it.
The Court rejected the argument that only judges are qualified to conduct an in camera review. First, Evidence Code section 1045 simply requires that an in camera Pitchess hearing must be had “in conformity with” Evidence Code section 915, “ ‘i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present . . . .’ ” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038 (Alford); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)
“We observed in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc): ‘[T]o protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.’ (Id. at page 1229.) Thus, we have recognized that Evidence Code section 1045 referenced Evidence Code section 915 only to the extent the latter provision defined what procedure was required at an in camera hearing, not who would conduct the hearing. The department’s reading of the statute would render the reference to Evidence Code section 915 mere surplusage.”
“We emphasize that here there is no question hearing officer Stiglitz, an attorney, is qualified to rule on the Pitchess motion. The MOU provides that a hearing officer be selected from a mutually agreed-upon list. (MOU, art. XII, § 14, subd. A.) If the department believed Stiglitz was not qualified for any reason, it could have removed him from the list or stricken him as an available hearing officer in this case. In any event, the Legislature in Evidence Code section 914 has determined that hearing officers generally have the authority to rule on claims of privilege in the same manner as courts.”
“Further, we observe that this case reflects several safeguards against improper disclosure of confidential records. The MOU here expressly provides that the administrative hearing is a ‘private proceeding’ between the disciplined officer and the county. (MOU, art. XII, § 14, subd. (H)(9).) Officer personnel records are confidential under Penal Code section 832.7, and we have held such records produced at administrative disciplinary proceedings are not subject to public disclosure. (See Copley Press, supra, 39 Cal.4th at pp. 1286-1299.) In addition, any discovered records may only be used in the proceeding at issue. (See Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)”
“We have also clarified that an officer’s entire personnel file need not be presented for review, only materials of the type requested. (Mooc, supra, 26 Cal.4th at pp. 1228-1230.) In the present case, such materials would be limited to incidents involving conduct similar to Drinkwater’s. This limitation balances privacy interests while permitting focused discovery.”
Drinkwater’s Pitchess motion also named the specific officers whose records she sought, reducing the possibility of an improper “fishing expedition.”
“The department concedes that the discovery Drinkwater seeks is relevant to the review of her discipline and does not bear on the credibility of officers whose records are sought. The question here is not whether those officers might be credible, but whether department decisionmakers granted those officers disparate treatment?”
HOW THIS AFFECTS YOUR AGENCY
Pitchess motions 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 DSA, 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 Sheriff’s Department, in an effort to continue the protection of personnel records of officers.
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 us at (714) 446-1400 or via e-mail at mjm@jones-mayer.com and gpp@jones-mayer.com.
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