Employment & Labor Law for Public Safety Agencies

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Bill of Rights Laws

     Monthly Law Journal Article: Public Safety Employee Discipline and State Bill of Rights Laws - Part 1, 2017 (9) AELE Mo. L. J. 201.

     Monthly Law Journal Article: Public Safety Employee Discipline and State Bill of Rights Laws - Part 2, 2017 (10) AELE Mo. L. J. 201.


     A former jail administrator who was terminated sued, asserting due process claims as well as claims under Minnesota’s Peace Officer Discipline Procedures Act (PODPA). A federal appeals court held that the termination process satisfied due process because he received a pre-termination notice, repeated opportunities for the administrator to tell his side of the story, and there was the availability of Minnesota's post-termination certiorari-based review procedure. Additionally, the plaintiff was not entitled to protection under PODPA because of his actual duties as an assistant jail administrator. He was not a “peace officer” as defined in the statute, given the fact that the county neither charged him with general law enforcement duties nor used his services for those purposes. Pena v. Kindler, #16-2756, 863 F.3d 994 (8th Cir.).

     An intermediate California court of appeals reversed the reinstatement of a terminated police officer, finding that he was not entitled to relief under the Public Safety Officers Procedural Bill of Rights Act (POBRA) because he did not file a timely appeal of his termination with the office of the chief of police as required by a memorandum of understanding with the San Diego Police Officers’ Association. Subsequently, the city was awarded costs in the case. The plaintiff terminated officer appealed the award of costs, arguing that POBRA prohibited an award of costs for the defense of his POBRA claim unless the action was frivolous or brought in bad faith. The City argued that it was entitled to its costs pursuant to Code of Civil Procedure section 9981 since the plaintiff rejected multiple statutory settlement offers and did not obtain a more favorable result. The appeals court agreed with the City and affirmed the cost award. Sviridov v. City of San Diego, #D069785, 14 Cal. App. 5th 514, 2017 Cal. App. Lexis 704.

       Based on their conduct during the execution of a search warrant at a marijuana dispensary, two police officers became the subjects of an internal affairs investigation that was initiated after video recordings of the raid were released to the media. The recordings were made by the dispensary owners using hidden cameras they had secretly installed. The Santa Ana, California Police Department initiated the investigation after video recordings of the officers were released to the media. The Santa Ana Police Officers Association and the officers sued the city, its police department, and its police chief.  They claimed that the police department violated the California Invasion of Privacy Act by using the video recordings made at the marijuana dispensary as the basis for, and as evidence in, the internal affairs investigation. They also asserted that the defendants violated Government Code section 3303(g), part of the Public Safety Officers Bill of Rights Act, by refusing to produce tape recordings of the initial interrogations of the officers, transcribed stenographer notes, and any reports or complaints made by the investigators or other persons, before interrogating the officers a second time. An intermediate California appeals court rejected the claim for violation of the California Invasion of Privacy Act because the officers had no reasonable expectation as a matter of law that their communications during the raid of the marijuana dispensary were not being overheard, watched, or recorded. The plaintiffs did, however, state a valid cause of action for violation of the Public Safety Officers Bill of Rights Act because, under section 3303(g), the defendants were required to produce the tape recordings of the initial interrogations, transcribed stenographer notes, and reports and complaints made by the investigators or other persons, before the officers could be interrogated a second time. Santa Ana Police Off. Assn. v. City of Santa Ana, #GO53126, 2017 Cal. App. Unpub. Lexis 4087.

     A non-probationary police officer in San Francisco had an interaction with a citizen which resulted in a complaint being filed against him with the department’s Office of Citizen Complaints (OCC). After an investigation by the OCC, and based on its findings and recommendations, as well as an internal affairs investigation, the police chief filed a disciplinary complaint against the officer before the Police Commission. The officer and his lawyer participated in the Commission hearing, after which he was terminated. An intermediate California appeals court ruled that the city’s procedure for disciplining officers violated a state Police Officer’s Bill of Rights law which provides that “[n]o punitive action . . . shall be undertaken by any public agency against any public safety officer . . . without providing the public safety officer with an opportunity for administrative appeal.” The city admittedly did not provide the officer with any kind of administrative appeal from the Police Commission’s decision. Morgado v. City and County of San Francisco, #A141681, 2017 Cal. App. Lexis 585.

     A police officer received a notice that the department intended to terminate his employment because of an alleged lack of honesty and cooperation in the investigation of a police brutality claim. He appealed the decision, and the police chief decided that the allegations against him could not be sustained. While he wasn't fired, he was removed from both the honor guard and the SWAT team. While he remained a field training officer, no trainees were assigned to him. He sued alleging a violation of his rights under the California Public Safety Officers Procedural Bill of Rights Act. Upholding the rejection of this claim, an intermediate state appeals court agreed that the removal of Perez from the SWAT team and the honor guard, and the failure to assign trainees to him as a field training officer did not violate the Act. The chief testified that he lost confidence in the officer's honesty after events that included the officer telling investigators he had not seen an act of excessive force that, video recordings showed, he was in a position to witness; The challenged actions were not punitive within the meaning of Gov. Code, § 3303; the SWAT team and honor guard were collateral assignments, not formal, full-time assignments, and the non-assignment of a trainee to a training officer was not a disciplinary or punitive action according to the memorandum of understanding between the city and the police bargaining unit. Perez v. City of Westminster, #G050718, 5 Cal. App. 5th 358, 2016 Cal. App. Lexis 966.
     A California Firefighters Procedural Bill of Rights Act, Gov. Code section 3250 et seq. gives a firefight the right to review and respond to any negative comment entered in their personnel file "or any other file used for any personnel purposes by the employer." The California Supreme Court ruled that this right did not apply to negative comments written in a supervisor's daily log, which amounted to notes on the supervisor's thoughts and observations concerning the employee which the supervisor could use as a memory aid while preparing performance plans and review. This was because the log was not shared with or available to anyone else other than the supervisor who wrote it. These comments would only adversely affect the plaintiff employee if and when they were placed in a personnel file, at which time there would be a right to respond to them. Poole v. Orange County Fire Authority, #S215300, 61 Cal. 4th 1378, 354 P.3d 346, 191 Cal. Rptr. 3d 551 (2015).
     Los Angeles public safety officers were involuntarily transferred, and claimed that this would cause them to suffer negative employment consequences even though no specified right or their pay was affected. An intermediate California appeals court ruled that the plaintiffs were not entitled to relief as the Public Safety Officers Procedural Bill of Rights Act (Gov. Code section 3300 et seq.) did not allow them the right to an administrative appeal of a transfer of assignment made for a non-punishment purpose. L.A. Police Protective League v. City of L.A., #B250922, 2014 Cal. App. Lexis 1116.
     Police officers claimed that they had been mistreated during an internal investigation of the discharge of one of three officer's weapons while they were off duty and drinking at a bar in close proximity to a police station. The plaintiffs failed to show that their administrative interrogations about the incident violated the Public Safety Officers Bill of Rights Act or their Fourth Amendment rights or a state civil rights act. They failed to show physical or mental hardships. Quezada v. City of Los Angeles, #B245879, 2014 Cal. App. Lexis 8.
     The California Firefighters' Procedural Bill of Rights (FFBOR) states that a firefighter's employer cannot have any adverse comment entered in an employee's personnel file or any other file utilized for personnel purposes without the firefighter first having the right to read it and sign an acknowledgment that they are aware of it. Daily logs about firefighters' activities maintained by a captain were used for personnel purposes and therefore were covered by the FFBOR. An intermediate California appeals court therefore overturned a judgment in favor of a defendant in a lawsuit objecting to adverse comments being placed in that log without compliance with the statute. The firefighter should have been made aware of those adverse comments when made and allowed to respond to them then. Letting him know about them only at an annual evaluation was not adequate, as he could not be expected to remember the details of all events months later in order to adequately respond. Poole v. Orange County Fire Authority, #G047691, 2013 Cal. App. Lexia 889.
     A former parole agent for the California Department of Corrections and Rehabilitation appealed the denial of his request to see and review his personnel and internal affairs files. An intermediate California appeals court ruled that former employees have no right under the state Public Safety Officers Procedural Bill of Rights Act, Gov. Code, § 3300 et seq to review their records. The plaintiff had been terminated six months earlier, and only had the right under the statute to review his records up until the effective date of his termination. He was given notice of the intent to terminate him, advised of his right to contest the termination, and given copies of all documents relied on in making the decision. He did not show that any relevant documents were withheld from that prior disclosure. Barber v. California Dep't of Corrections and Rehabilitation, #E052296, 2012 Cal. App. Lexis 134 (2nd Dist.).
     A California police chief showed that he had been removed from office in violation of his rights under the state's Public Safety Officers Procedural Bill of Rights Act (POBRA), Gov.Code,  §3300 et seq. He was not provided with the required notice, statement of reasons, or opportunity for an administrative appeal guaranteed by the statute. The municipality also breached the automatic three-year renewal provisions of the chief's contract, and the contract did not allow for an oral notice of non-renewal. Under the agreement, he was also entitled to six months of severance pay. Robinson v. City of Chowchilla, #F059608, 2011 Cal. App. Lexis 1636.
    Administrative charges against a police officer for making false statements about past misconduct in the course of an internal investigations were not barred by a one year limitations period provided in the Maryland Law Enforcement Officers’ Bill of Rights, Md. Code Public Safety §3-106(a). The limitations period starts to run from the day the officer's false statement came to their attention rather than from the date the underlying incident came to departmental attention. Robinson v. Baltimore Police Dept., #2011-17, 2011 Md. Lexis775.
      An assistant sheriff was entitled to an award of back pay for the period of time between his summary firing for alleged disloyalty and his subsequent no contest pleas to two state felony charges (for misappropriation of public resources and perjury before a grand jury), which made it impossible for him to continue to be employed as a law enforcement officer. Firing him without any kind of hearing violated his rights under California's Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code, § 3300 et seq., and purported waivers of POBRA rights that he purportedly signed on two occasions did not alter the result. Jaramillo v. County of Orange, #G043142, 2011 Cal. App. Lexis 1397 (Cal. App.).
    A trial court reinstated a police officer to his prior employment, based on a finding that a settlement of pending disciplinary charges under which he agreed to resign if similar misconduct charges were upheld in the future, giving up his right to pursue an administrative appeal, violated his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code, § 3300 et seq. An intermediate California appeals court reversed, holding that a waiver of POBRA's protections is permissible in the context of a settlement of a pending disciplinary action. Lanigan v. City of Los Angeles, #B228686, 2011 Cal. App. Lexis 1262 (2nd Dist.).
     California appellate panel rejects a city’s claim that the LEOBOR does not apply if accused police officers ultimately are exonerated by a Board of Rights. "Under the City’s theory, it could choose to violate the Act if it was confident that it would not ultimately prevail in its attempt to impose discipline, an absurd result." Paterson v. City of Los Angeles, #B208682, 2009 Cal. App. Lexis 963 (2nd Dist.).
     Arbitrator orders the reinstatement of a police officer who was removed for violating a conduct regulation. Management failed to comply with state law and provide him with a signed complaint. A "Garrity Warning" form is not a signed complaint. City of Lubbock, Texas, and Individual Grievant, 125 LA (BNA) 554, AAA Case #71-390-00053-08 (Moore, 2008).
     Although verbal statements must be suppressed for not complying with the state's Bill of Rights law, a California appellate panel declines to exclude evidence of an officer's act of pointing her loaded firearm at a sergeant during her interrogation. "Although this action occurred during an interrogation which was conducted in a questionable manner, the remedy of suppression protects statements, not actions ..." Perez v. City of Los Angeles, #B199810, 2008 Cal. App. Lexis 1469 (2nd Dist.).
     California appellate court holds that city officials must not disclose police officer personnel records must cease permitting the public to access the Police Review Commission's investigations, reports, hearings, and findings. Berkeley Police Assn. v. City of Berkeley, #A118537, 2008 Cal. App. Lexis 1567 (1st Dist.).
     Rights granted law enforcement officers under the California Public Safety Officers Procedural Bill of Rights Act do not apply to officers that are subjected to criminal investigations conducted by their employers. Van Winkle v. County of Ventura, #B194395, 158 Cal.App. 4th 492, 2007 Cal. App. Lexis 2086 (2nd Dist.).
     The California Public Safety Officers Procedural Bill of Rights Act, Cal. Gov't Code §3303 did not apply to an interview of an officer because neither that officer nor the former employee were under investigation at the time. Eaton v. Siemens, #2:07-cv-0315, 2007 U.S. Dist. Lexis 58621 (E.D. Cal.).
     Where at most a reprimand could have resulted, an officer's conversation with her sergeant about report classifying procedures did not implicate the state's Bill of Rights Act, Calif. Govt. Code §3300. Steinert v. City of Covina, #B187940, 2006 Cal. App. Lexis 2097 (2d App. Dist. 2006). [N/R]
     California appellate court orders that a written reprimand be removed from a LAPD sergeant's personnel file. Management failed to give him notice of any proposed disciplinary action within one year of the discovery of the alleged misconduct, as required by the Public Safety Officers Procedural Bill of Rights Act. Mays v. City of Los Angeles, #B188527, 2006 Cal. App. Lexis 1942 (2d Dist. 2006). {N/R}
     California appellate court rejects claim by a terminated officer that informal or self-initiated conversations with his superiors triggered protections afforded under the state's Procedural Bill of Rights Act. Correa v. County of Riverside, #E036581, 2005 Cal. App. Unpub. Lexis 11319 (4th App. Dist. 2005). [2006 FP Feb]
     An amendment to the Illinois Peace Officers' Rights law requires superiors to inform an officer under investigation, in writing, of the identity of interrogators and others who are present; it also requires officers to identify the persons who will be representing them during any interrogation. S.B. 1669, Pub. Act 94-0344, 50 ILCS 725/3.4. {N/R}
     California appellate court holds that the state's Public Safety Officers Procedural Bill of Rights Act does not apply to a criminal investigation conducted by an outside agency. Moreover, where a police officer avoids the severe penalty of dismissal by entering into a settlement agreement and accepts lesser discipline, he cannot seek a remedy under the Public Safety Officers Procedural Bill of Rights Act to avoid that discipline. Alhambra Police Officers Assn. v. City of Alhambra, #B160896, 113 Cal. App. 4th 1413, 7 Cal.Rptr.3d 432 (2003); review denied, 2004 Cal. Lexis 2852 (2004). {N/R}
     Illinois now requires a sworn complaint as a precedent to a formal disciplinary interview of a law enforcement officer. Illinois Uniform Peace Officers' Disciplinary Act amendment, 50 ILCS 725/3.8. [2004 FP May]
     California appeals court upholds a compelled disciplinary interview, without the officer's lawyer present, when counsel was unable to appear for a rescheduled interview. Upland POA v. City of Upland, #E032607, 2003 Cal. App. Lexis 1407 (Cal. App.4th Dist. 2003). [Dec FP 2003]
     Under the state's Public Safety Officers Procedural Bill of Rights law, a California appeals court affirms a writ of mandate compelling a police dept. to provide, to officers that undergo investigatory interrogation, copies of tape-recorded witness interviews and rough notes taken by investigators. San Diego P.O.A. v. San Diego (Bejarno), #D037812, 98 Cal.App.4th 779, 120 Cal.Rptr.2d 609, 2002 Cal. App. Lexis 4145 (Cal. App. 4th Dist. 2002). {N/R}
     A police agency internal affairs index card listing all complaints made against a named officer, is a file "used for personnel purposes" under the state's Public Safety Officers Procedural Bill of Rights Act, for purposes of the officer's right to read and respond. Sacramento P.O.A. v. Venegas, #C030428, 124 Cal.Rptr.2d 666, 2002 Cal. App. Lexis 4584 (Cal. App. 3d Dist. 2002). {N/R}
     Depositions and cross-examinations of a police officer, who is a plaintiff in a civil action against the city, is not "interrogation" which would trigger rights under the state's Peace Officers' Disciplinary Act. Krocka v. Police Bd. of Chicago, #1-00-2639, 327 Ill.App.3d 36, 762 N.E.2d 577, 2001 Ill. App. Lexis 933 (7th Cir., 2001). {N/R}      California appellate court holds that the state's "Bill of Rights" law requiring accused officers to be given all "reports" pertaining to the I-A investigation includes notes and recordings made by investigating officers. San Diego P.O.A. v. San Diego, #D037812, 2002 Cal. App. Lexis 4145, 02 C.D.O.S. 5008 (Cal. 4th App. Dist. 2002). {N/R}
     Law enforcement agencies in California won a limited right to conceal from probationary peace officers information gathered about them during employment background investigations. Although the Officers' Procedural Bill of Rights Act guarantees the right to view adverse comments in their personnel files, a divided Supreme Court held that an employee may waive the protections of the law for pre-employment conduct, but not on-the-job complaints. Riverside v. Superior Court (Madrigal), #S094675, 27 Cal.4th 793, 42 P.2d 1034, 2002 Cal. Lexis 1878, 02 CDOS 2783 (Cal. 2002). [N/R]
     California appeals court upholds and tightens an injunction against management attempts to deny the constitutional and statutory rights of correctionsofficers being interviewed as witnesses and targets in a criminal investigation. Management cannot recast an internal inquiry as an independent or outside investigation when it enlists that investigation. Calif. Correctional POA v. St. of Calif., #A085064, 82 Cal.App.4th 294, 2000 Cal. App. Lexis 566, 98 Cal.Rptr.2d 302. [2000 FP 131-3]
     Law Enforcement Officers "Bill of Rights" reintroduced in the 105th Congress. Police chiefs and sheriff voice opposition. The bill and an analysis may be viewed at the AELE website: [1997 FP 52]
     California fire chiefs have no protection under Govt. Code 3301 (Public Safety Officers Bill of Rights) because they are not "peace officers" under Penal Code 830.37 (arson investigators). Gauthier v. City of Red Bluff, 95 D.A.R. 6413 (Cal.App. 1995). {N/R}
     Nevada statute protects personnel files of police officers from undisclosed entries and gives an officer the right to comment on the content. Nev. Stat. Sec. 289.040, amended by Ch. 672, L. 1991 (Eff. 10/1/91). [1992 FP 3]
     Wisconsin enacts police bill of rights law. Senate Bill 128, Wisconsin Laws 1979 Chapter 166. [1980 FP #71 p.4].
     Illinois adopts new "bill of rights" law; compromise between unions and police chief's association. [1984 FP #112 p.13].
     Maryland rules that police officers" Bill of Rights law covers investigations, not summary dismissals of untenured employees. DiGrazia v. Co. Exec. for Montgomery Co., 288 Md. 437, 418 A.2d 1191, 1980 Md. Lexis 213; 115 LRRM (BNA) 4409.

     See also: Disciplinary Interrogations, Disciplinary Punishment and Transfers.

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