BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 1032 (Wright)                                           2
          As Introduced February 12, 2010
          Hearing date:  April 13, 2010
          Penal Code
          SM:dl

               THE OFFICE OF THE INSPECTOR GENERAL AND THE PUBLIC SAFETY  
 
                         OFFICER'S PROCEDURAL BILL OF RIGHTS  


                                       HISTORY

          Source:  California Correctional Supervisors Organization

          Prior Legislation:SB 174 (Strickland) - Chap. 35, Statutes of  
          2009
                         SB 1352 (Romero) - Chap. 734, Statutes of 2004
                         SB 868 (Wright) - Chap. 918, Statutes of 1999
                         SB 1462 (Maddy) - Chap. 766, Statutes of 1994
                            SB 328 (Maddy) - 1994, Vetoed
                            ABx1 39 (Polonco) - 1994, died in the Senate
                             
          Support: California Narcotics Officers' Association; California  
                   Peace Officers' Association; California Police Chiefs'  
                   Association

          Opposition:None known



                                         KEY ISSUE
           




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                                                           SB 1032 (Wright)
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          SHOULD THE ENFORCEMENT PROVISIONS CONTAINED IN GOVERNMENT CODE  
          SECTION 3309.5, PERTAINING TO VIOLATIONS OF THE PUBLIC SAFETY  
          OFFICERS PROCEDURAL BILL OF RIGHTS ACT, APPLY TO THE INSPECTOR  
          GENERAL?  


                                           


                                       PURPOSE

          The purpose of this bill is to provide that the enforcement  
          provisions contained in Government Code section 3309.5,  
          pertaining to violations of the Public Safety Officers  
          Procedural Bill of Rights Act, would apply to the Inspector  
          General.  
          
           Existing law  establishes the independent Office of the Inspector  
          General which shall not be a subdivision of any other  
          governmental entity.  The Governor shall appoint, subject to  
          confirmation by the Senate, the Inspector General to a six-year  
          term.  The Inspector General may not be removed from office  
          during that term, except for good cause.  (Penal Code  6125.)

           Existing law  provides that the Inspector General during regular  
          business hours or at any other time determined necessary by the  
          Inspector General, shall have access to and authority to examine  
          and reproduce any and all records, and to examine the bank  
          accounts, money, or other property of the Department of  
          Corrections and Rehabilitation for any audit, investigation,  
          inspection, or contemporaneous oversight.  Any officer or  
          employee of any agency or entity having these records or  
          property in his or her possession or under his or her control  
          shall permit access to, and examination and reproduction thereof  
          consistent with the provisions of this section, upon the request  
          of the Inspector General or his or her authorized  
          representative.  (Penal Code  6126.5(a).)  

           Existing law  provides that for the purpose of conducting any  
          audit, investigation, inspection, or contemporaneous oversight,  




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                                                           SB 1032 (Wright)
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          the Inspector General or his or her authorized representative  
          shall have access to the records and property of any public or  
          private entity or person subject to review or regulation by the  
          public agency or public entity being audited, investigated, or  
          overseen to the same extent that employees or officers of that  
          agency or public entity have access. No provision of law or any  
          memorandum of understanding or any other agreement entered into  
          between the employing entity and the employee or the employee's  
          representative providing for the confidentiality or privilege of  
          any records or property shall prevent disclosure, as specified.  
          Access, examination, and reproduction consistent with the  
          provisions of this section shall not result in the waiver of any  
          confidentiality or privilege regarding any records or property.   
          (Penal Code  6126.5(b).)  Any officer or person who fails or  
          refuses to permit access, examination, or reproduction, as  
          required by this section, is guilty of a misdemeanor.  (Penal  
          Code  6126.5(c).)

           Existing law  provides that the Inspector General may require any  
          employee of the Department of Corrections and Rehabilitation to  
          be interviewed on a confidential basis. Any employee requested  
          to be interviewed shall comply and shall have time afforded by  
          the appointing authority for the purpose of an interview with  
          the Inspector General or his or her designee. The Inspector  
          General shall have the discretion to redact the name or other  
          identifying information of any person interviewed from any  
          public report issued by the Inspector General, where required by  
          law or where the failure to redact the information may hinder  
          prosecution or an action in a criminal, civil, or administrative  
          proceeding, or where the Inspector General determines that  
          disclosure of the information is not in the interests of  
          justice. It is not the purpose of these communications to  
          address disciplinary action or grievance procedures that may  
          routinely occur.  If it appears that the facts of the case could  
          lead to punitive action, the Inspector General shall be subject  
          to Sections 3303, 3307, 3307.5, 3308, and 3309 of the Government  
          Code as if the Inspector General were the employer, except that  
          the Inspector General shall not be subject to the provisions of  
          any memorandum of understanding or other agreement entered into  
          between the employing entity and the employee or the employee's  




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          representative that is in conflict with, or adds to the  
          requirements of, Sections 3303, 3307, 3307.5, 3308, and 3309 of  
          the Government Code  .  (Penal Code  6126.5(d), emphasis added.)

           Existing law  establishes the Public Safety Officers Procedural  
          Bill of Rights (POBR).  POBR provides procedural protections for  
          peace officers in employment-related matters.  (Gov. Code   
          3300, et seq.)

           Existing law  provides that it is unlawful for any public safety  
          department to deny or refuse to any public safety officer the  
          rights and protections guaranteed to him or her by the POBR and  
          that the superior court shall have initial jurisdiction over any  
          proceeding brought by any public safety officer against any  
          public safety department for alleged violations of the POBR.   
          (Gov. Code  3309.5(a) and (c).)

           Existing law  provides that in any case where the superior court  
          finds that a public safety department has violated any of the  
          provisions of this chapter, the court shall render appropriate  
          injunctive or other extraordinary relief to remedy the violation  
          and to prevent future violations of a like or similar nature,  
          including, but not limited to, the granting of a temporary  
          restraining order, preliminary injunction, or permanent  
          injunction prohibiting the public safety department from taking  
          any punitive action against the public safety officer.   
          Additionally,

                 If the court finds that a bad faith or frivolous action  
               or a filing for an improper purpose has been brought  
               pursuant to this chapter, the court may order sanctions  
               against the party filing the action, the party's attorney,  
               or both, pursuant to Sections 128.6 and 128.7 of the Code  
               of Civil Procedure. Those sanctions may include, but not be  
               limited to, reasonable expenses, including attorney's fees,  
               incurred by a public safety department as the court deems  
               appropriate. Nothing in this paragraph is intended to  
               subject actions or filings under this section to rules or  
               standards that are different from those applicable to other  
               civil actions or filings subject to Section 128.6 or 128.7  




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               of the Code of Civil Procedure.

                 In addition to the extraordinary relief afforded by this  
               chapter, upon a finding by a superior court that a public  
               safety department, its employees, agents, or assigns, with  
               respect to acts taken within the scope of employment,  
               maliciously violated any provision of this chapter with the  
               intent to injure the public safety officer, the public  
               safety department shall, for each and every violation, be  
               liable for a civil penalty not to exceed twenty-five  
               thousand dollars ($25,000) to be awarded to the public  
               safety officer whose right or protection was denied and for  
               reasonable attorney's fees as may be determined by the  
               court. If the court so finds, and there is sufficient  
               evidence to establish actual damages suffered by the  
               officer whose right or protection was denied, the public  
               safety department shall also be liable for the amount of  
               the actual damages. Notwithstanding these provisions, a  
               public safety department may not be required to indemnify a  
               contractor for the contractor's liability pursuant to this  
               subdivision if there is, within the contract between the  
               public safety department and the contractor, a "hold  
               harmless" or similar provision that protects the public  
               safety department from liability for the actions of the  
               contractor. An individual shall not be liable for any act  
               for which a public safety department is liable under this  
               section. (Gov Code  3309.5(d) and (e).)

           This bill  would provide that the enforcement provisions  
          contained in Government Code section 3309.5, pertaining to  
          violations of the Public Safety Officers Procedural Bill of  
          Rights Act, would apply to the Inspector General.  These  
          provisions establish jurisdiction for any claimed violation in  
          the Superior Court and provide a variety of civil remedies that  
          a court may grant to address any violation.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  




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          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison




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               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The
               state of emergency declared by Governor Schwarzenegger  
               almost three years ago continues to this day,  
               California's prisons remain severely overcrowded, and  
               inmates in the California prison system continue to  
               languish without constitutionally adequate medical and  
               mental health care.<1>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS

          1.  Need for This Bill  

          ---------------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




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          According to the author:

               This bill will correct a flaw in the original  
               legislation creating the Office of Inspector General  
               (OIG). In the original legislation the Peace Officers  
               Bill of Rights (POBR) was referenced requiring the OIG  
               to follow the provisions of POBR; however the original  
               drafters left off the enforcement section of POBR  
               rendering the requirement of the OIG to comply with  
               POBR, with no penalty for not following it. In a  
               recent court case the Judge noted that while the OIG  
               violated the provisions of POBR, because the penalty  
               section was omitted there was no legal remedy for this  
               violation. The court further indicated that the OIG  
               should have followed POBR.


          2.  The Public Safety Officer's Procedural Bill of Rights Act  

          The Public Safety Officer's Procedural Bill of Rights Act or  
          POBR is primarily a labor relations statute.  It provides a  
          catalog of basic rights and protections that must be afforded  
          all peace officers by the public entities which employ them.   
          (Runyan v. Ellis (1995) 40 Cal.App.4th 961, 964; Binkley v. City  
          of Long Beach (1993) 16 Cal.App.4th 1795, 1805.)  Penal Code  
          section 6126.5 states that, in the course of investigating a  
          case, the Inspector General may require employees of CDCR to  
          submit to an interview however, if it appears that the facts of  
          the case could lead to punitive action, the Inspector General is  
          bound by the provisions of POBR "as if the Inspector General  
          were the employer."  (Penal Code  6126.5(d).)  













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          In CCPOA v. State of California, the Court of Appeal stated:

               Section 3303 . . . describes in considerable detail  
               the conditions that must be followed "when any public  
               safety officer is under investigation and subjected to  
               interrogation by his or her commanding officer, or any  
               other member of the employing public safety  
               department, that could lead to punitive action . . .  
               ." ( 3303.)  In essence, the statute requires that,  
               prior to interrogation, an officer must be informed of  
               the identity of the interrogators and the nature of  
               the investigation.  The interrogation must be  
               conducted at a reasonable hour, for a reasonable  
               period of time, may not include offensive language,  
               and may be tape-recorded by the officer. The right to  
               representation arises when the interrogation focuses  
               on matters likely to result in punitive action.

               The Act was not designed to provide public safety  
               officers any greater right than other persons in  
               connection with investigations by law enforcement  
               agencies in which they are not employed.  By its own  
               terms, the protections of section 3303 apply only to  
               investigations "by [the public safety officer's]  
               commanding officer, or any other member of the  
               employing public safety department, that could lead to  
               punitive action . . . ."  As used in the statute,  
               "punitive action means any action that may lead to  
               dismissal, demotion, suspension, reduction in salary,  
               written reprimand, or transfer for purposes of  
               punishment."  (Ibid.)  This language was held in  
               People v. Velez (1983) 144 Cal. App. 3d 558 [192 Cal.  
               Rptr. 686] to render section 3303 inapplicable to  
               interrogations of public safety officers by  
               representatives of a law enforcement agency that does  
               not employ the interrogated officer.  (CCPOA v.  
               California (2000), 82 Cal. App. 4th 294, 306.)

          3. Remedies for Violations of the POBR  




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          In CCPOA v. State of California, supra, the plaintiffs, several  
          prison guards, were being investigated for alleged criminal  
          conduct at a state prison.  The superior court issued a  
          preliminary injunction against both the justice department (DOJ)  
          and CDCR.  The preliminary injunction was issued to protect  
          plaintiffs against asserted violations of the Public Safety  
          Officers Procedural Bill of Rights Act.  The appellate court  
          reversed and modified that ruling, concluding the investigation  
          violated provisions of the Act and injunctive relief was  
          therefore appropriate under Gov. Code  3309.5 against CDCR but  
          not against DOJ.  Plaintiffs were not told who would interrogate  
          them, or given prior notice of the nature of the investigation.   
          The Court found that the guards were not allowed to consult with  
          counsel, and were not advised of their constitutional rights.   
          The Court found that enjoining CDCR from violating the Act's  
          provisions was sufficient to provide effective relief, since it  
          was the CDCR's actions that were covered under the Act.  The  
          Court reversed the trial court to the extent the trial court's  
          injunction included DOJ, finding that it was unauthorized by   
          3309.5, because DOJ was not the guards' employer.























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               Section 3309.5 authorizes injunctive relief only as to  
               the employing public safety department, which is the  
               CDC.  Nowhere does the statute authorize enjoining the  
               investigative activities of outside law enforcement  
               agencies such as the DOJ. Moreover, meaningful relief  
               does not require inclusion of the DOJ in the  
               injunction.  Enjoining the CDC from violating the  
               provisions of the act is sufficient to provide  
               effective relief, since it was the CDC's actions that  
               rendered the act applicable.  (CCPOA v. California,  
               supra, 82 Cal. App. 4th 294, 312.)

          This case illustrates the significance of the fact that the  
          Inspector General is bound by the provisions of the POBR "as if  
          the Inspector General were the employer" and also that  
          injunctive relief is often an appropriate remedy to address a  
          violation of the POBR.  The enforcement provisions of the POBR  
          are contained in Government Code section 3309.5.  For some  
          reason, the statute which specifically requires the OIG to be  
          subject to the provisions of the POBR, omitted reference to its  
          enforcement provisions, that is, those provisions of the POBR  
          that provide for judicial review of any alleged violations and  
          authorize the court to impose a variety of remedies.  This bill  
          would add that reference to section 3309.5.

          When contacted by the Committee, OIG stated that it does conduct  
          its investigations of peace officers in conformity with POBR.   
          However, OIG believes that, because the main purpose of section  
          3309.5 is to protect the officer from being disciplined based on  
          an investigation where his or her rights were violated, to  
          remedy a violation an injunction would necessarily have to be  
          issued against the public safety employer, not the OIG who has  
          no authority to discipline.  

          However, section 3309.5 not only seeks to protect an officer  
          from being disciplined based on an investigation where his or  
          her rights under the POBR were violated, it also authorizes the  
          court to apply appropriate remedies "to prevent future  
          violations of a like or similar nature."  Although OIG is not  




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          authorized to discipline a peace officer, if it were to conduct  
          its investigations in violation of the POBR, that alone is a  
          violation of the law and a court might well find it appropriate  
          and necessary to enjoin OIG "to prevent future violations of a  
          like or similar nature."  Because the OIG is bound by statute to  
          conduct its investigations in accordance with the provisions of  
          the POBR, it seems anomalous for the same statute to omit the  
          provisions that are designed to address any violation of those  
          procedural protections.


          BECAUSE THE OFFICE OF THE INSPECTOR GENERAL IS BOUND TO COMPLY  
          WITH THE PUBLIC SAFETY OFFICER'S PROCEDURAL BILL OF RIGHTS ACT,  
          SHOULD THE PROVISIONS DESIGNED TO REMEDY ANY VIOLATION OF THE  
          ACT ALSO APPLY TO THE OIG?


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