BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 2543 (Alejo)                                             
          As Amended June 11, 2012 
          Hearing date: July 3, 2012
          Government Code
          SM:dl

                      PEACE OFFICER BILL OF RIGHTS: "BRADY LISTS"  

                                       HISTORY

          Source:  Peace Officer Research Association of California (PORAC)

          Prior Legislation:  SB 638 (DeLeon) - Died, Senate Public Safety
                        AB 1873 (Koretz) - Ch. 63, Stats. 2002
                       AB 2040 (Diaz) - Ch. 391, Stats. 2002
                       AB 2559 (Cardoza) - Ch. 971, Stats. of 2000
                       AB 1016 (Hertzberg) - Ch. 25, Stats. 1998
                       AB 3434 (House) - Ch. 1108, Stats. 1996

          Support: American Federation of State, County, and Municipal 
                   Employees (AFSCME); Association for Los Angeles Deputy 
                   Sheriffs; Association of Orange County Deputy Sheriffs; 
                   Bakersfield Police Officers Association; California 
                   Association of Highway Patrolmen; California Coalition 
                   of Law Enforcement Associations; California Fraternal 
                   Order of Police; California Professional Firefighters; 
                   California State Firefighters Association; Long Beach 
                   Police Officers Association; Los Angeles County 
                   Probation Officers Union; Los Angeles County 
                   Professional Peace Officers Association; Los Angeles 
                   Police Protective League; Los Angeles School Police 
                   Association; Napa Police Officers Association; Newport 




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                   Beach Police Association, Riverside Sheriffs' 
                   Association; Sacramento County Deputy Sheriffs 
                   Association; San Bernardino Police Officers Association; 
                   San Francisco Peace Officers Association; San Mateo 
                   County Deputy Sheriffs Association; Santa Ana Police 
                   Officers Association; Southern California Alliance of 
                   Law Enforcement; State Coalition of Probation 
                   Organizations; Vallejo Police Officer's Association

          Opposition:   American Civil Liberties Union; California Public 
                   Defenders Association; California State Sheriffs 
                   Association; California State Association of Counties 
                   (CSAC); California Association of Joint Powers 
                   Authorities; League of California Cities; California 
                   Peace Officers Association; California Police Chiefs 
                   Association
            

                                        KEY ISSUES
           
          SHOULD ANY PUBLIC AGENCY BE PROHIBITED FROM TAKING ANY PUNITIVE 
          ACTION, OR DENIAL OF PROMOTION ON GROUNDS OTHER THAN MERIT, AGAINST 
          ANY PUBLIC SAFETY OFFICER BECAUSE THAT OFFICER'S NAME HAS BEEN 
          PLACED ON A BRADY LIST?

          SHOULD ANY PUBLIC AGENCY BE PROHIBITED FROM TAKING ANY PUNITIVE 
          ACTION, OR DENIAL OF PROMOTION ON GROUNDS OTHER THAN MERIT, AGAINST 
          ANY PUBLIC SAFETY OFFICER BECAUSE THAT OFFICER'S NAME MAY BE SUBJECT 
          TO DISCLOSURE PURSUANT TO BRADY V. MARYLAND?

          SHOULD IT BE PROHIBITED TO INTRODUCE EVIDENCE THAT A PUBLIC SAFETY 
          OFFICER'S NAME HAS BEEN PLACED ON A BRADY LIST, OR MAY OTHERWISE BE 
          SUBJECT TO DISCLOSURE PURSUANT TO BRADY V. MARYLAND IN ANY 
          ADMINISTRATIVE APPEAL OF A PUNITIVE ACTION, OR IN ANY CIVIL 
          PROCEEDING BETWEEN THE OFFICE OR THE PUBLIC AGENCY, EXCEPT AS 
          SPECIFIED?


                                       PURPOSE




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          The purpose of this bill is to provide that (1) no punitive 
          action, or denial of promotion on grounds other than merit, shall 
          be undertaken by any public agency against any public safety 
          officer because that officer's name has been placed on a Brady 
          list, or that the officer's name may otherwise be subject to 
          disclosure pursuant to  Brady v. Maryland ; (2) this shall not 
          prohibit a public agency from taking punitive action, denying 
          promotion on grounds other than merit, or taking other personnel 
          action against a public safety officer based on the underlying 
          acts or omissions for which that officer's name was placed on a 
          Brady list, or may otherwise be subject to disclosure pursuant to 
           Brady v. Maryland  , if the actions taken by the public agency 
          otherwise conform to this chapter and to the rules and procedures 
          adopted by the local agency; (3) evidence that a public safety 
          officer's name has been placed on a Brady list, or may otherwise 
          be subject to disclosure pursuant to  Brady v. Maryland  , shall not 
          be introduced for any purpose in any administrative appeal of a 
          punitive action, or in any civil proceeding between the officer 
          or the public agency, except as follows: (4) evidence that a 
          public safety officer's name was placed on a Brady list may only 
          be introduced if, during the administrative appeal of a punitive 
          action against an officer, the underlying act or omission for 
          which that officer's name was placed on a Brady list is proven 
          and the officer is found to be subject to some form of punitive 
          action.  Evidence that a public safety officer's name was placed 
          on a Brady list pursuant to this subdivision shall only be used 
          for the sole purpose of determining the type or level of punitive 
          action to be imposed.
          
           

          Current law  generally governs law enforcement agencies conducting 
          internal affairs investigations of peace officers.  (Gov. Code §§ 
          3300-3313.)  This is known as the Public Safety Officers 
          Procedural Bill of Rights Act:  Existing law provide peace 
          officers with several procedural rights in these investigations.  
          (Gov. Code § 3304.)  Some of those procedural rights include: 





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                 No public safety officer shall be subjected to punitive 
               action, or denied promotion, or be threatened with any such 
               treatment, because of the lawful exercise of the rights 
               granted under this chapter, or the exercise of any rights 
               under any existing administrative grievance procedure.
                 Nothing in this section shall preclude a head of an 
               agency from ordering a public safety officer to cooperate 
               with other agencies involved in criminal investigations. If 
               an officer fails to comply with such an order, the agency 
               may officially charge him or her with insubordination.
                 No punitive action, nor denial of promotion on grounds 
               other than merit, shall be undertaken by any public agency 
               against any public safety officer who has successfully 
               completed the probationary period that may be required by 
               his or her employing agency without providing the public 
               safety officer with an opportunity for administrative 
               appeal.
                 Except as specified, no punitive action, nor denial of 
               promotion on grounds other than merit, shall be undertaken 
               for any act, omission, or other allegation of misconduct if 
               the investigation of the allegation is not completed within 
               one year of the public agency's discovery by a person 
               authorized to initiate an investigation of the allegation of 
               an act, omission, or other misconduct. In the event that the 
               public agency determines that discipline may be taken, it 
               shall complete its investigation and notify the public 
               safety officer of its proposed discipline by a Letter of 
               Intent or Notice of Adverse Action articulating the 
               discipline that year, except as specified. The public agency 
               shall not be required to impose the discipline within that 
               one-year period.
                 Where a pre-disciplinary response or grievance procedure 
               is required or utilized, the time for this response or 
               procedure shall not be governed or limited by this chapter.
                 If, after investigation and any pre-disciplinary response 
               or procedure, the public agency decides to impose 
               discipline, the public agency shall notify the public safety 
               officer in writing of its decision to impose discipline, 
               including the date that the discipline will be imposed, 




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               within 30 days of its decision, except if the public safety 
               officer is unavailable for discipline.(Gov. Code § 3304.)

           Current law provides that no public safety officer shall have any 
          comment adverse to his interest entered in his personnel file, or 
          any other file used for any personnel purposes by his employer, 
          without the public safety officer having first read and signed 
          the instrument containing the adverse comment indicating he is 
          aware of such comment, except that such entry may be made if 
          after reading such instrument the public safety officer refuses 
          to sign it. Should a public safety officer refuse to sign, that 
          fact shall be noted on that document, and signed or initialed by 
          such officer.  (Gov. Code § 3305.)

           



          This bill  would add the following provisions to the Public Safety 
          Officers Procedural Bill of Rights:

                 No punitive action, or denial of promotion on grounds 
               other than merit, shall be undertaken by any public agency 
               against any public safety officer because that officer's 
               name has been placed on a Brady list, or that the officer's 
               name may otherwise be subject to disclosure pursuant to 
               Brady v. Maryland (1963) 373 U.S. 83.
                 Nothing in this section shall prohibit a public agency 
               from taking punitive action, denying promotion on grounds 
               other than merit, or taking other personnel action against a 
               public safety officer based on the underlying acts or 
               omissions for which that officer's name was placed on a 
               Brady list, or may otherwise be subject to disclosure 
               pursuant to Brady v. Maryland (1963) 373 U.S. 83, if the 
               actions taken by the public agency otherwise conform to this 
               chapter and to the rules and procedures adopted by the local 
               agency.
                 Evidence that a public safety officer's name has been 
               placed on a Brady list, or may otherwise be subject to 




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               disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, 
               shall not be introduced for any purpose in any 
               administrative appeal of a punitive action, or in any civil 
               proceeding between the office or the public agency, except 
               as follows:
                 Evidence that a public safety officer's name was placed 
               on a Brady list may only be introduced if, during the 
               administrative appeal of a punitive action against an 
               officer, the underlying act or omission for which that 
               officer's name was placed on a Brady list is proven and the 
               officer is found to be subject to some form of punitive 
               action.  Evidence that a public safety officer's name was 
               placed on a Brady list pursuant to this subdivision shall 
               only be used for the sole purpose of determining the type or 
               level of punitive action to be imposed.

           This bill  defines "Brady list" to mean "any system, index, list, 
          or other record containing the names of peace officers whose 
          personnel files are likely to contain evidence of dishonesty or 
          bias, which is maintained by a prosecutorial agency or office in 
          accordance with the holding in Brady v. Maryland (1963) 373 U.S. 
          83."


                     RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                       ("ROCA")
          
          In response to the unresolved prison capacity crisis, since early 
          2007 it has been the policy of the chair of the Senate Committee 
          on Public Safety and the Senate President pro Tem to hold 
          legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 




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          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  Under 
          these principles, ROCA has been applied as a content-neutral, 
          provisional measure necessary to ensure that the Legislature does 
          not erode progress towards reducing prison overcrowding by 
          passing legislation which could increase the prison population.  
          ROCA will continue until prison overcrowding is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation.  
          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take control 
          of the delivery of medical services to all California state 
          prisoners confined by the California Department of Corrections 
          and Rehabilitation ("CDCR").  In December of 2006, plaintiffs in 
          two federal lawsuits against CDCR sought a court-ordered limit on 
          the prison population pursuant to the federal Prison Litigation 
          Reform Act.  On January 12, 2010, a three-judge federal panel 
          issued an order requiring California to reduce its inmate 
          population to 137.5 percent of design capacity -- a reduction at 
          that time of roughly 40,000 inmates -- within two years.  The 
          court stayed implementation of its ruling pending the state's 
          appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject to 
          the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a prison 
          can house based on one inmate per cell, single-level bunks in 
          dormitories, and no beds in places not designed for housing.  
          Current design capacity in CDCR's 33 institutions is 79,650.




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          On January 6, 2012, CDCR announced that California had cut prison 
          overcrowding by more than 11,000 inmates over the last six 
          months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more than 
          the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
          This bill does not aggravate the prison overcrowding crisis 
          described above under ROCA.






                                       COMMENTS


          1.  Need for This Bill  

          According to the author:

               The Public Safety Officers Procedural Bill of Rights 
               Act (POBOR) provides a set of rights and procedural 
               protections to specified public safety officers.  The 
               Act fails to address a disturbing trend in law 
               enforcement in which public agencies take punitive 
               actions against their public safety officer employees 
               based solely on the officers' inclusion on "Brady" 
               lists without regard to the underlying facts.

               There have been numerous instances where a local public 




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               agency has taken punitive action, including the denial 
               of promotions and dismissal, against a public safety 
               officer employee based on that officer's placement onto 
               a Brady list for alleged misconduct - whether or not 
               the misconduct actually occurred.  As a result in some 
               cases, the employment of public safety officers is 
               terminated based on nothing more than allegations of 
               misconduct, which renders illusory the Public Safety 
               Officers Procedural Bill of Rights Act.

               The standard for placing public safety officers on 
               Brady lists varies from county to county.  Some 
               counties implement and maintain a Brady policy with no 
               discernible standards for inclusion or mechanisms for 
               appeal, which results in the arbitrary and perpetual 
               placement of public safety officers on Brady lists.  
               Because prosecutors enjoy absolute prosecutorial 
               immunity and immunity under the Eleventh Amendment, it 
               is impossible to challenge one's placement on a Brady 
               list, even if that placement was malicious or made in 
               error.  

               AB 2543 seeks to stop the unfair practice of taking 
               punitive action against peace officers for the mere 
               reason of being placed on the list.  Instead, this bill 
               maintains management's authority to take actions 
               against officers for the underlying action that caused 
               the officer to be investigated.  Lacking uniform 
               criteria for being placed on the Brady List, public 
               safety officers should be evaluated based on their 
               merits and for the underlying reasons they are 
               investigated.

          2.  What is a Brady List?  

          In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), 
          the U.S. Supreme Court held that where a prosecutor in a criminal 
          case withholds material evidence from the accused person that is 
          favorable to the accused, this violates the Due Process Clause of 




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          the 14th Amendment.  (Ibid at 87, see also Giglio v. United 
          States, 405 U.S. 150 (1972).)  Brady and Giglio impose on 
          prosecutors a duty to disclose to the defendant material evidence 
          that would be favorable to the accused.  
          If the prosecutor is aware of misconduct, past or present, on the 
          part of a police officer who may be called as a witness in a 
          case, and that misconduct could discredit or "impeach" the 
          officer's testimony, the prosecutor has an obligation to turn 
          that evidence over to the defendant.  "Impeachment evidence is 
          exculpatory evidence within the meaning of Brady.  Brady/Giglio 
          information includes 'material . . . that bears on the 
          credibility of a significant witness in the case.'"  (United 
          States v. Blanco, 392 F.3d 382, 387-388 (9th Cir. 2004, citations 
          omitted).)

          Failure to divulge this information may result in a variety of 
          sanctions being imposed on the prosecution including, e.g., 
          striking a witnesses' testimony or complete reversal of a 
          conviction.  "Reversal is required when there is a 'reasonable 
          possibility' that the error materially affected the verdict."  
          (United States v. Goldberg, 582 F.2d 483, 488 (9th Cir. 1978), 
          cert. denied, 440 U.S. 973, 59 L. Ed. 2d 790, 99 S. Ct. 1538 
          (1979).)  A federal court recently described why this obligation 
          is imposed:  "Prosecutors are entrusted with the authority and 
          responsibility to protect public safety and uphold the integrity 
          of the judicial system.  They perform the latter, in part, by 
          ensuring that criminal defendants are offered all potentially 
          exculpatory or impeaching information."  (Lackey v. Lewis County, 
          2009 U.S. Dist. LEXIS 94674 (D. Wash. 2009).)

          As a result of this obligation, prosecutors' offices have a duty 
          to seek that information out from other law enforcement agencies. 
           

               Because the prosecution is in a unique position to 
               obtain information known to other agents of the 
               government, it may not be excused from disclosing what 
               it does not know but could have learned." A 
               prosecutor's duty under Brady necessarily requires the 




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               cooperation of other government agents who might 
               possess Brady material. In United States v. Zuno-Arce, 
               44 F.3d 1420 (9th Cir. 1995) (as amended), we explained 
               why "it is the government's, not just the prosecutor's, 
               conduct which may give rise to a Brady violation." 
               Exculpatory evidence cannot be kept out of the hands of 
               the defense just because the prosecutor does not have 
               it, where an investigating agency does. That would 
               undermine Brady by allowing the investigating agency to 
               prevent production by keeping a report out of the 
               prosecutor's hands until the agency decided the 
               prosecutor ought to have it, and by allowing the 
               prosecutor to tell the investigators not to give him 
                                                                               certain materials unless he asked for them.

          (United States v. Blanco, 392 F.3d 382, 387-388 (9th Cir. 2004).)

          The term "Brady list" refers to a list kept by a prosecutor's 
          office, of police officers for whom the prosecutor's office has 
          determined evidence of misconduct exists that would have to be 
          turned over to the defense pursuant to Brady v. Maryland.

          3.  The Effect of This Bill  

          This bill would prevent any public agency from taking any 
          punitive action or denial of promotion against any public safety 
          officer because that officer's name has been placed on a Brady 
          list, or that the officer's name may otherwise be subject to 
          disclosure pursuant to Brady v. Maryland.  The agency could take 
          such action, however, as a result of the underlying conduct that 
          resulted in the officer being placed on, or being subject to 
          being placed on, a Brady list.  For example, if a peace officer 
          is convicted of petty theft, a misdemeanor, his employing agency 
          might decide that a 30-day suspension was warranted.  However, 
          the District Attorney's office might decide that, because that 
          crime involved dishonestly or "moral turpitude," and could 
          therefore be used to impeach the officer's testimony, in order to 
          comply with Brady requirements, the fact of that conviction would 
          have to be disclosed to any defendant in any case in which that 




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          officer needed to be called as a witness.  Therefore, the DA's 
          office might put that officer's name on a "Brady list" to flag 
          for any of the deputy DA's the need to disclose this evidence if 
          they ever need to call that officer as a witness.  The fact that 
          this "Brady material" has to be disclosed, and could be used to 
          impeach the officer's testimony, could seriously damage the 
          prosecutor's ability to obtain a conviction in any case in which 
          that officer was a necessary witness.  Consequently, the 
          officer's employing agency might conclude that that officer could 
          no longer perform their job duties and needed to be dismissed or, 
          at a minimum, the officer needed to be transferred to duty that 
          did not involve making arrests, which the officer would 
          undoubtedly consider a punitive action.  

          This bill would prohibit any public agency from taking any 
          punitive action against the officer based on the fact that he or 
          she was placed on a "Brady list" but would allow that action so 
          long as it is based only on the underlying conduct that caused 
          the officer to be placed on the list.  In the hypothetical 
          example described above, this would mean the officer could be 
          suspended, transferred or fired for committing the petty theft 
          but not for the fact that the DA's office placed the officer on 
          the "Brady list."

          In practical terms it would be difficult, if not impossible, for 
          an employer to establish whether the punitive action, or denial 
          of promotion, was taken because of the DA's decision to place the 
          officer on the Brady list or because of the underlying reason the 
          DA took that action, i.e., the petty theft conviction.  This bill 
          goes farther, however, and provides that no punitive action could 
          be taken because "the officer's name may otherwise be subject to 
          disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83."  In 
          other words, no punitive action or denial of promotion could be 
          taken based on the fact that an officer's conduct might result in 
          their being placed on a Brady list.  

          It is foreseeable that the effect of this bill would be that in 
          many instances where an adverse employment action is taken 
          against an officer for misconduct that has been clearly 




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          established (e.g. a criminal conviction), the employee could 
          claim the action was based on the concomitant fact that the 
          misconduct is subject to disclosure under Brady.  It is not clear 
          how the employer could prove otherwise.  By making it more 
          difficult for agencies to fire officers whose testimony may be 
          impeached with their own acts of dishonesty, the end result could 
          be that prosecutors will have a harder time obtaining convictions 
          in cases involving those officers or may decline to even file 
          charges in such cases.  

          Another foreseeable effect could be that police and sheriff's 
          departments will be forced to retain officers whose misconduct, 
          for example for use of excessive force, has subjected the 
          department to liability, and could do so again in the future.  
          Because that misconduct may be subject to disclosure under Brady, 
          any attempt by the employing department to terminate the officer, 
          or even move him or her to a desk job, could be challenged on the 
          grounds that it was not the misconduct that motivated the 
          disciplinary action, but the fact that it would be subject to 
          disclosure under Brady.
          The sponsors of the bill have stated that the discretion given to 
          district attorneys to place an officer on a Brady list allows for 
          unwarranted personnel action to be taken against peace officers 
          at the whim of a DA.  They state that there are examples of this 
          being done for malicious reasons and they correctly point out 
          that the courts have held that DA's have immunity for these 
          decisions.  (Neri v. County of Stanislaus Dist. Attorney's 
          Office, 2010 U.S. Dist. LEXIS 99839 (2010).) Members may wish to 
          consider whether the potential for a DA to act maliciously in 
          this way justifies the remedy proposed in this bill given the 
          burden this bill might place on a law enforcement agency in an 
          employment action against an officer for misconduct, where that 
          is truly warranted.

          WILL POLICE AGENCIES BE ABLE TO ESTABLISH THAT A DISMISSAL OR 
          DENIAL OF PROMOTION WAS NOT DUE TO THE FACT THAT AN OFFICER'S 
          MISCONDUCT MIGHT BE SUBJECT TO DISCOVERY UNDER BRADY?

          WILL THIS RESULT IN MORE OFFICERS WITH RECORDS OF MISCONDUCT 




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          KEEPING THEIR JOBS OR BEING PROMOTED?

          COULD THIS RESULT IN CRIMINAL CASES BEING DISMISSED OR NEVER 
          FILED DUE TO THE OFFICER'S LACK OF CREDIBILITY AS A WITNESS?  

          COULD THIS COMPROMISE PUBLIC SAFETY?

          ARE DISTRICT ATTORNEYS PLACING OFFICERS ON BRADY LISTS 
          MALICIOUSLY?

          IF THIS HAS HAPPENED, IS THIS BILL AN APPROPRIATE RESPONSE?

          4.  Recent Amendment Regarding Administrative Appeals  

          A recent amendment to the bill addresses when evidence that an 
          officer's name was placed on a Brady list could be introduced at 
          an administrative appeal of a punitive action against an officer. 
           Under this provision, such evidence could only be introduced if 
          "during the administrative appeal of a punitive action against an 
          officer, the underlying act or omission for which that officer's 
          name was placed on a Brady list is proven and the officer is 
          found to be subject to some form of punitive action.  Evidence 
          that a public safety officer's name was placed on a Brady list 
          pursuant to this subdivision shall only be used for the sole 
          purpose of determining the type or level of punitive action to be 
          imposed."

          This appears to contemplate a bifurcated administrative hearing 
          process with one phase to determine the validity of the 
          misconduct charged, and a second phase to determine the 
          employer's motive in taking the punitive action.  Only in the 
          second phase could evidence of the officer having been placed on 
          a Brady list be introduced.  This would apply only to 
          administrative appeals of punitive actions, not in civil actions, 
          where the total ban on introduction of evidence regarding Brady 
          would still apply.  This exception also states that it only 
          applies to cases in which an officer's name is actually placed on 
          a Brady list whereas the prohibitions of the bill would apply to 
          the broader category of whenever an officer's misconduct is 




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          subject to disclosure under Brady.  
          This amendment doesn't appear to alter the basic dilemma 
          presented by this bill, how would the employer ever be able to 
          establish that the reason an action was taken against the 
          employee was the employee's misconduct as opposed to the fact 
          that the misconduct is disclosable under Brady?  

          5.  Argument in Support  

          The California Association of Highway Patrolmen state:

































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               The Public Safety Officers Procedural Bill of Rights 
               (POBOR) provides a set of rights and procedural 
               protections to specified public safety officers; 
               however, the Act fails to address a disturbing trend in 
               law enforcement in which public agencies take punitive 
               actions against their public safety officer employees 
               based solely on the officers' inclusion on "Brady" lists 
               without regard to the underlying facts.

               There have been numerous instances where a local public 
               agency has taken punitive action, including the denial 
               of promotions and dismissal, against a public safety 
               officer employee based on that officer's placement onto 
               a Brady list for alleged misconduct whether or not the 
               misconduct actually occurred.  As a result in some 
               cases, the employment of public safety officers is 
               terminated based on nothing more than allegations of 
               misconduct, which renders illusory the Public Safety 
               Officers Procedural Bill of Rights Act.

               The standard for placing public safety officers on Brady 
               lists varies from county to county.  Some counties 
               implement and maintain a Brady policy with no 
               discernible standards for inclusion or mechanisms for 
               appeal, which results in the arbitrary and perpetual 
               placement of public safety officers on Brady lists.  
               Because prosecutors enjoy absolute prosecutorial 
               immunity and immunity under the Eleventh Amendment, it 
               is impossible to challenge one's placement on a Brady 
               list, even if that placement was malicious or made in 
               error.

          6.  Argument in Opposition  

          The California State Association of Counties, League of California 
          Cities and California Association of Joint Powers Authorities 
          state:

               AB 2543 would prohibit a public agency from taking 




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               punitive action against a public safety officer or 
               denying a promotion on grounds other than merit because 
               the officer's name is placed on a Brady list or the 
               officer's name is subject to disclosure pursuant to 
               Brady v. Maryland (1963) 373 U.S. 83.  AB 2543 places 
               unnecessary restrictions on a public agency's ability to 
               discipline a public safety officer for the underlying 
               action that resulted in that officer being placed on the 
               Brady list because the employer will be required to 
               prove that the punitive action is not related to the 
               existence of the Brady list.  We believe this to be an 
               impossible standard since the employee will always argue 
               his or her discipline is the result of the Brady list.  
               Recent amendments to AB 2543 further require the public 
               agency, in order to raise the issue in an administrative 
               appeal, to prove the underlying act or omission for 
               which the officer's name was placed on the Brady list 
               and that, and that, as a result, the officer is found to 
               be subject to punitive action.

               Public agency employers need the authority to 
               appropriately discipline their workforce in order to 
               maintain trust and confidence from the community they 
               serve.  AB 2543 simply adds another administrative 
               process public employers must go through to effectively 
               manage their employees without citing any evidence that 
               public safety officers are not sufficiently protected by 
               the Public Safety Officers Procedural Bill of Rights 
               Act.


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