BILL ANALYSIS Ó SB 313 Page 1 Date of Hearing: June 18, 2013 Chief Counsel: Gregory Pagan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 313 ( Leon) - As Amended: April 24, 2013 SUMMARY : Prohibits any public agency from taking any punitive action against a public safety officer or denying a promotion on grounds other than merit of an officer because he or she is placed on a "Brady list," as specified. Specifically, this bill : 1)Provides that a punitive action, or denial of promotion on grounds other than merit, shall not 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, 373 U.S. 83 (1963). 2)States that this section does 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, 373 U.S. 83 (1963), 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)Prohibits the introduction of 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, 373 U.S. 83 (1963) in any administrative appeal of a punitive action. 4)Provides that 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 the officer's name was placed on a Brady list is proven and the officer is subject to some form of punitive action. Evidence that a SB 313 Page 2 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. 5)Defines a "Brady list" as 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 to Brady v. Maryland, 373 U.S. 83 (1963). EXISTING LAW : 1)Creates the Public Safety Officers Procedural Bill of Rights (POBOR). (Government Code Section 3300 et. seq.) 2)States that, for purposes of the POBOR, "punitive action" means any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. (Government Code Section 3303.) 3)States that 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 POBOR, or the exercise of any rights under any existing administrative grievance procedure. [Government Code Section 3304(a).] 4)States that 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. [Government Code Section 3304(a).] 5)States that 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. [Government Code Section 3304(b).] 6)States that no chief of police may be removed by a public SB 313 Page 3 agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. [Government Code Section 3304(c).] 7)States that, except as provided, 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. [Government Code Section 3304(d).] 8)States that 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. [Government Code Section 3304(f).] 9)States that notwithstanding the one-year time period specified in subdivision (d), an investigation may be reopened against a public safety officer if significant new evidence has been discovered that is likely to affect the outcome of the investigation and either the evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency or the evidence resulted from the public safety officer's pre-disciplinary response or procedure. [Government Code Section 3304(g).] FISCAL EFFECT : None COMMENTS : 1)Author's Statement : According to the author, "Senate Bill 313 address the disturbing trend under which law enforcement agencies take punitive actions against their officers based solely on the officers' inclusion on 'Brady' Lists, without regard to the facts in an investigation. Senate Bill 313 would prohibit any public agency from taking action against a public safety officer, on grounds other than the merit of an SB 313 Page 4 officer, because he or she is placed on a Brady List. "Numerous officers have been subject to punitive action or denied promotions based on their placement on the Brady List for alleged misconduct, even if the misconduct did not actually occur. "Without uniform criteria for placement on the Brady List across counties, public safety officers should be evaluated based on the underlying reasons they are being investigated. "SB 313 will not prohibit a public agency from taking action against an officer based on the underlying acts for which that officer's name was placed on the Brady List. "It simply ensures that peace officers are fairly evaluated based on their actions and are afforded due process in employment decisions." 2)Brady Lists and Disclosure in Criminal Cases : Unlike civil court cases, there is generally no discovery permitted in criminal cases in California, except where required by a specific statute or required by the United States Constitution. [Penal Code Section 1054(e).] The landmark case in the area of criminal disclosures is Brady v. Maryland. [373 U.S. 83 (1963).] In that case and its progeny, the United States Supreme Court held that due process requires the disclosure to the defendant of evidence favorable to an accused that is material either to guilt or punishment. (Id. at 87.) This requirement for disclosure does not distinguish between impeachment evidence that reflects on the credibility of the witness, and direct exculpatory evidence. [U.S v. Bagley, 473 U.S. 667, 676 (1985).] The Brady disclosure requirement obligates the prosecutor to turn evidence of misconduct by a police officer who may be called as a witness in a case, if that misconduct could discredit or impeach the officer's testimony. "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).] As a result of this obligation, prosecutors' offices have a duty SB 313 Page 5 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 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)Arguments in Support : a) The Peace Officer Research Association of California argues, "The Public Safety Officer Procedural Bill of Rights (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 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 SB 313 Page 6 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, I t 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 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." b) The Correctional Peace Officer Association states, "SB 313 would eliminate the use of placement on a 'Brady' list as a justification for disciplining public safety officers. The measure does not, however, restrict the employer from using the underlying action in employee discipline cases. "SB 313 would insure that peace officers are disciplined only for actual behavior. It is almost impossible to challenge placement on a 'Brady' list due to constitutional protections enjoyed by prosecutors. SB 313 would restore protections that are contained in POBOR and which have been significantly diminished by the use of 'Brady' lists for disciplinary reasons." 4)Arguments in Opposition : a) The California State Sheriffs' Association believes, "SB 313 would prohibit a public agency from taking punitive SB 313 Page 7 action against a public safety officer, or denying promotion on grounds other than merit, because that officer has been placed on a Brady list, or whose name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83. "Once a law enforcement officer has engaged in misconduct that requires law enforcement agencies and/or district attorneys' officers 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." b) The California Public Defenders Association argues, "This bill would prohibit a public agency from taking punitive action against a public safety officer, or denying promotion on grounds other than merit, because that officer's name is placed on a Brady list. The bill would provide, however, that the public agency may take punitive or personnel action against a public safety officer based on the underlying acts or omissions for which that officer's name was placed on the Brady list, as specified. The bill would prohibit the introduction of any evidence that an officer's name was p laced on a Brady list in any administrative appeal of a punitive action between the officer and an office or public agency. "This bill would undermine law enforcement's goal to protect and serve the public. The vast majority of police officer works hard and do their very best every single day under what are often trying circumstances, taking pride in being honest and in policing with integrity. "There are however, a few officers who commit acts of SB 313 Page 8 misconduct that bring shame and disrespect upon themselves and tarnish the badge. This misconduct is so serious that prosecutors have determined that the United States Constitution (as enunciated by the Supreme Court in Brady v. Maryland (1963) 373 U.S. 73) mandates that malfeasance be disclosed because of its impact upon the mandate that a trial be fair. Accordingly, the misconduct that these few officers commit is fare from trivial, and instead is serious and egregious, with repercussions fay beyond the incident in question. Worse still, the few police officer who engage in this type of misconduct leave their supervisors with limited choices about how to use them as the prosecutors who must bring their cases to court are unable to effectively use them as witnesses. This is because cases that are filed are harmed when the prosecution discloses that the arresting officer has a Brady problem. "This bill does nothing to protect hard working and honest officers but instead enable those few damaged officers to continue their employment even though their arrests might not be filed and prosecuted because their word simply cannot be trusted. "How many officers have a 'Brady Jacket?' The number is small, microscopic in relation to the total number of law enforcement officers in this state. Might an officer (in his or her mind) be unfairly tarnished? At times, yes, that is possible. Yet it is also unlikely because neither supervisors nor prosecutors move ahead with Brady disclosure without serious investigation and thought. Trivial misconduct is not Brady material. Only the most serious misconduct which would likely change the outcome of a trial is considered Brady misconduct." 5)Prior Legislation : AB 2543 (Alejo), of the 2011-12 Legislative Session, was identical to this bill in that AB 2543 prohibited a public agency from taking any punitive action against a public safety officer because he or she was placed on a Brady list. AB 2543 failed passage in the Senate Committee on Public Safety. REGISTERED SUPPORT / OPPOSITION : Support SB 313 Page 9 Peace Officers Research Association of California (Sponsor) Association of Orange County Deputy Sheriffs Association for Los Angeles Deputy Sheriffs Riverside Sheriffs Association California Correctional Peace Officers Association California Fraternal Order of Police California Statewide Law Enforcement Association Glendale City Employees Association Long Beach Peace officers Association Los Angeles Police Protective League Los Angeles Probation Officers Union Organization of SMUD Employees Sacramento County Deputy Sheriff's Association San Bernardino Public Association San Luis Obispo Employees Association Santa Ana Police Officers Association Santa Rosa Employees Association West Sacramento Police Officers Association Opposition American Civil Liberties Union California Association of Joint Powers Authorities California Police Chiefs Association California Probation, Parole and Correctional Association California Public Defenders Association California State Association of Counties California State Sheriffs' Association Lassen County League of California Cities Marin County Council of Mayors and Council Members San Bernardino County Sheriff's Office Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744