BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 1 0 3 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 (More) SB 1032 (Wright) PageB 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, (More) SB 1032 (Wright) PageC 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 (More) SB 1032 (Wright) PageD 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 (More) SB 1032 (Wright) PageE 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 (More) SB 1032 (Wright) PageF 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 (More) SB 1032 (Wright) PageG 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). (More) SB 1032 (Wright) PageH 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).) (More) 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 (More) SB 1032 (Wright) PageJ 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. (More) 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 (More) SB 1032 (Wright) PageL 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? ***************