BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 313
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          Date of Hearing:   June 25, 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  








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            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  








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            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  








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            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  








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            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  








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               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  








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               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  








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               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 








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           Peace Officers Research Association of California (Sponsor)
          Association for Los Angeles Deputy Sheriffs
          Association of Orange County Deputy Sheriffs
          California Association of Highway Patrolmen
          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 County Professional Peace Officers Association
          Los Angeles Police Protective League
          Los Angeles Probation Officers Union, AFSCME, Local 685
          Organization of SMUD Employees 
          Riverside Sheriffs Association
          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