BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 313|
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THIRD READING
Bill No: SB 313
Author: De León (D), et al.
Amended: 4/24/13
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-1, 4/9/13
AYES: Anderson, Block, De León, Knight, Steinberg
NOES: Hancock
NO VOTE RECORDED: Liu
SUBJECT : Public Safety Officers Procedural Bill of Rights Act
SOURCE : California Association of Highway Patrolmen
Peace Officer Research Association of California
DIGEST : This bill prohibits a public agency from taking
punitive action, or denying promotion on grounds other than
merit, against a public safety officer, because the officers
name was placed on a Brady list, and prohibits the introduction
of any evidence in an administrative appeal of a punitive action
that the officer's name was placed on a Brady list, except as
provided.
ANALYSIS : Existing law generally governs law enforcement
agencies conducting internal affairs investigations of peace
officers. This is known as the Public Safety Officers
Procedural Bill of Rights Act. Existing law provides peace
officers with several procedural rights in these investigations.
Some of those procedural rights include:
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1.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, or the exercise of any rights under any existing
administrative grievance procedure.
2.Nothing 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/her with insubordination.
3.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/her employing
agency without providing the public safety officer with an
opportunity for administrative appeal.
4.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.
5.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.
6.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, within 30 days of
its decision, except if the public safety officer is
unavailable for discipline.
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This bill adds the following provisions to the Public Safety
Officers Procedural Bill of Rights:
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 (1963) 373 U.S. 83.
2.Nothing prohibits 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
the specified 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 (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:
A. 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 shall only be used for the sole
purpose of determining the type or level of punitive action
to be imposed.
4.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
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(1963) 373 U.S. 83."
Background
In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963),
the United States 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 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 Circuit Court of
Appeals 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 Circuit Court
of Appeals 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
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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 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/12/13)
California Association of Highway Patrolmen (co-source)
Peace Officer Research Association of California (co-source)
AFSCME
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Correctional Peace Officers Association
California Fraternal Order of Police
California Statewide Law Enforcement Association
Long Beach Police Officers Association
Los Angeles County Probation Officers Union
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Sacramento County Deputy Sheriff's Association
Santa Ana Police Officers Association
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OPPOSITION : (Verified 6/12/13)
American Civil Liberties Union
California Association of Joint Powers Authorities
California Police Chiefs Association
California Public Defenders Association
California State Association of Counties
California State Sheriffs' Association
League of California Cities
Marin County Council of Mayors and Councilmembers
ARGUMENTS IN SUPPORT : The Los Angeles County Probation
Officers Union states:
The Public Safety Officers Procedural Bill of Rights
(POBOR) provides a set of rights and procedural protections
to peace officers. 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 - even
if the misconduct had not actually occurred. As a result,
the employment of public safety officers can be terminated
based on nothing more than allegations of misconduct, once
an officer is placed on the "Brady list."
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 can
result 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.
SB 313 seeks to stop the unfair practice of punitive action
against peace officers for the mere reason of being placed
on the Brady list. SB 313 allows management to take
actions against officers for the underlying action that
caused the officer to be investigated based on merit and
for the underlying reason they are investigated.
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Placement on a "Brady List" is a "scarlet letter" for peace
officers. Taking disciplinary action against an officer,
up to and including firing that officer, should never occur
unless the underlying cause is both proven true, and the
conduct warrants such action.
ARGUMENTS IN OPPOSITION : The California State Sheriff's
Association states:
Once a law enforcement officer has engaged in misconduct
that requires law enforcement agencies and/or district
attorneys' offices to make disclosures under the United
States Constitution pursuant to Brady, the ability of that
officer to serve a department is compromised. An officer
may no longer be allowed to testify in court because doing
so could subject a criminal case to reversal or subject a
county to civil liability if a wrongful conviction results.
Unfortunately, if an officer is no longer able to testify
under oath, he or she is no longer able to serve reliably
on patrol, effectuate arrests, or file reports. However,
SB 313 would prohibit the reassignment of that officer to
other departmental functions, because that could be
considered punitive. Ultimately this may result in
untrustworthy and unreliable officers patrolling
the community, undermining the public trust and credibility
of the rest of the department.
JG:nk 6/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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