BILL NUMBER: SB 1286 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Leno
FEBRUARY 19, 2016
An act to amend Sections 1043 and 1045 of the Evidence Code, to
amend Section 3304.5 of the Government Code, and to amend Sections
832.5 and 832.7 of the Penal Code, relating to peace officers.
LEGISLATIVE COUNSEL'S DIGEST
SB 1286, as introduced, Leno. Peace officers: records of
misconduct.
(1) The Public Safety Officers Procedural Bill of Rights Act
provides a set of rights and procedural protections to specified
public safety officers. That act requires an administrative appeal
instituted by a public agency under the act to be conducted in
conformance with rules and procedures adopted by the local public
agency. Existing law also establishes the Administrative Procedure
Act, and requires enumerated state agencies to hold hearings under
that act that are conducted by administrative law judges.
This bill would, notwithstanding any confidentiality afforded the
personnel records of peace officers or custodial officers, authorize
a municipality or local public agency that employs peace officers or
custodial officers to hear and adjudicate administrative appeals, or
to empower a body to hear and adjudicate those appeals, in
proceedings that are open to the public and in which some or all
documents filed are available for public inspection.
(2) Existing law requires a department or agency that employs
peace officers to establish a procedure to investigate complaints by
members of the public against those officers. Existing law authorizes
a department or agency that employs custodial officers to establish
a similar procedure for its officers. Existing law establishes
retention requirements and access privileges, as specified, for those
complaints and related reports or findings. Existing law requires
the department or agency to provide written notification to the
complaining party of the disposition of a complaint made pursuant to
those provisions within 30 days of the disposition.
This bill would require that notification to include, at a
minimum, the charges framed in response to the complaint, the agency'
s disposition with respect to each of those charges, any factual
findings on which the agency based its dispositions, and any
discipline imposed or corrective action taken. By increasing the
duties of local officials, the bill would impose a state-mandated
local program.
(3) The California Public Records Act requires a state or local
agency, as defined, to make public records available for inspection,
subject to certain exceptions. Existing law provides that peace
officer or custodial officer personnel records, as defined, and
records maintained by any state or local agency relating to
complaints against peace officers and custodial officers, or
information obtained from these records, are confidential and
prohibits the disclosure of those records in any criminal or civil
proceeding except by discovery. Existing law describes exceptions to
this policy for investigations or proceedings concerning the conduct
of peace officers or custodial officers, or an agency or department
that employs those officers, conducted by a grand jury, a district
attorney's office, or the Attorney General's office.
This bill would expand the scope of the exceptions to apply to,
among other things, investigations or proceedings conducted by
civilian review agencies, inspectors general, personnel boards,
police commissions, civil service commissions, city councils, boards
of supervisors, or any entities empowered to investigate peace
officer misconduct on behalf of an agency, conduct audits of peace
officer discipline on behalf of an agency, adjudicate complaints
against peace officers or custodial officers, hear administrative
appeals, or set policies or funding for the law enforcement agency.
The bill would also require an entity described in those exceptions
to comply with specified confidentiality provisions.
This bill would require, notwithstanding any other law, certain
peace officer or custodial officer personnel records and records
relating to complaints against peace officers and custodial officers
to be available for public inspection pursuant to the California
Public Records Act. The bill would provide that this information
includes but is not limited to, the framing allegation or complaint,
the agency's full investigation file, any evidence gathered, and any
findings or recommended findings, discipline, or corrective action
taken. The bill would require records disclosed pursuant to this
provision to be redacted only to remove personal data or information,
such as a home address, telephone number, or identities of family
members, other than the names and work-related information of peace
officers and custodial officers, to preserve the anonymity of
complainants and witnesses, or to protect confidential medical,
financial, or other information in which disclosure would cause an
unwarranted invasion of personal privacy that clearly outweighs the
strong public interest in records about misconduct by peace officers
and custodial officers, or where there is a specific, particularized
reason to believe that disclosure would pose a significant danger to
the physical safety of the peace officer, custodial officer, or
others.
(4) Existing law establishes discovery procedures for obtaining
peace officer and custodial officer personnel files and files
relating to complaints against peace officers and custodial officers.
This bill would specify that those provisions do not bar or limit
access in any proceeding to peace officer or custodial officer
personnel records or records relating to complaints against peace
officers and custodial officers, and would provide that those
provisions do not require a party to a proceeding pending in a court
or administrative agency to seek records through alternate means
before filing a motion pursuant to the discovery provisions described
above.
(5) The California Constitution requires local agencies, for the
purpose of ensuring public access to the meetings of public bodies
and the writings of public officials and agencies, to comply with a
statutory enactment that amends or enacts laws relating to public
records or open meetings and contains findings demonstrating that the
enactment furthers the constitutional requirements relating to this
purpose.
This bill would make legislative findings to that effect.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Peace officers help provide one of our state's most
fundamental government services -- keeping our communities safe.
These working men and women risk their lives daily in order to
protect the people of California. The public greatly appreciates
peace officers' hard work and dedication to public safety. The good
names of these public servants should not be tarnished by the actions
of those amongst their ranks who may engage in wrongdoing.
(b) To empower peace officers to fulfill their mission, the people
of California vest them with extraordinary authority -- the powers
to detain, search, arrest, and use deadly force. Our society depends
on peace officers' faithful exercise of that authority. Its misuse
can lead to grave constitutional violations, harms to liberty, and
the inherent sanctity of human life, as well as significant public
unrest.
(c) Concealing crucial public safety matters such as officer
violations of civilians' rights, or inquiries into deadly use of
force incidents, undercuts the public's faith in the legitimacy of
law enforcement, makes it harder for tens of thousands of hardworking
peace officers to do their jobs, and endangers public safety.
(d) The public has a strong, compelling interest in law
enforcement transparency because it is essential to having a just and
democratic society.
SEC. 2. Section 1043 of the Evidence Code is amended to read:
1043. (a) In any case in which If
discovery or disclosure is sought of peace officer or
custodial officer personnel records or records maintained pursuant to
Section 832.5 of the Penal Code and for which that section or
Section 832.7 of the Penal Code bar or limit disclosure, or
information from those records, the party seeking the discovery or
disclosure shall file a written motion with the appropriate court or
administrative body upon written notice to the governmental agency
which that has custody and control of
the records. The written notice shall be given at the times
prescribed by subdivision (b) of Section 1005 of the Code of Civil
Procedure. Upon receipt of the notice the governmental agency served
shall immediately notify the individual whose records are sought.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
peace officer or custodial officer whose records are
sought, the governmental agency which that
has custody and control of the records, and the time and place
at which the motion for discovery or disclosure shall be heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief
that the governmental agency identified has the records or
information from the records.
(c) No A hearing upon a motion for
discovery or disclosure shall not be held without full
compliance with the notice provisions of this section except upon a
showing by the moving party of good cause for noncompliance, or upon
a waiver of the hearing by the governmental agency identified as
having the records.
(d) A party to a proceeding pending in a court or administrative
agency is not required to seek records through alternate means before
filing a motion pursuant to this section.
SEC. 3. Section 1045 of the Evidence Code is amended to read:
1045. (a) Nothing in this article shall be construed to
This article does not affect the right of access
to records of complaints, or investigations of complaints, or
discipline imposed as a result of those investigations, concerning an
event or transaction in which the peace officer or custodial
officer, as defined in Section 831.5 of the Penal Code, participated,
or which he or she perceived, and pertaining to the manner in which
he or she performed his or her duties, provided that information is
relevant to the subject matter involved in the pending litigation.
(b) In determining relevance, the court shall examine the
information in chambers in conformity with Section 915, and shall
exclude all of the following from disclosure:
(1) Information consisting of complaints concerning conduct
occurring more than five years before the event or transaction that
is the subject of the litigation in aid of which discovery or
disclosure is sought.
(2) In any criminal proceeding the conclusions of any officer
investigating a complaint filed pursuant to Section 832.5 of the
Penal Code.
(3) Facts sought to be disclosed that are so remote as to make
disclosure of little or no practical benefit.
(c) In determining relevance where the issue in litigation
concerns the policies or pattern of conduct of the employing agency,
the court shall consider whether the information sought may be
obtained from other records maintained by the employing agency in the
regular course of agency business which that
would not necessitate the disclosure of individual personnel
records.
(d) Upon motion seasonably made by the governmental agency
which that has custody or control of
the records to be examined or by the officer whose records are
sought, and upon good cause showing the necessity thereof, the court
may make any order which that justice
requires to protect the officer or agency from unnecessary annoyance,
embarrassment embarrassment, or
oppression.
(e) The court shall, in any case or proceeding permitting the
disclosure or discovery of any peace officer or custodial
officer records requested pursuant to Section 1043, order that the
records disclosed or discovered may not be used for any purpose other
than a court proceeding pursuant to applicable law.
(f) This article does not bar or limit access in any proceeding to
peace officer or custodial officer personnel records or records
maintained pursuant to Section 832.5 of the Penal Code for which
Sections 832.5 or 832.7 of the Penal Code do not prohibit disclosure.
SEC. 4. Section 3304.5 of the Government Code is amended to read:
3304.5. (a) An administrative appeal
instituted by a public safety officer under this chapter shall be
conducted in conformance with rules and procedures adopted by the
local public agency.
(b) Notwithstanding any confidentiality given to the personnel
records of peace officers or custodial officers under this chapter or
under the provisions governing regulation of peace officers
contained in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 of the Penal Code, a municipality or local public agency that
employs peace officers may hear and adjudicate an administrative
appeal under this chapter, or the municipality or local public agency
may empower a body to hear and adjudicate those appeals, in
proceedings that are open to the public and in which some or all
documents filed are available for public inspection.
SEC. 5. Section 832.5 of the Penal Code is amended to read:
832.5. (a) (1) Each A department or
agency in this state that employs peace officers shall establish a
procedure to investigate complaints by members of the public against
the personnel of these departments or agencies, and shall make a
written description of the procedure available to the public.
(2) Each A department or agency that
employs custodial officers, as defined in Section 831.5, may
establish a procedure to investigate complaints by members of the
public against those custodial officers employed by these departments
or agencies, provided however, that any procedure so established
shall comply with the provisions of this section and with the
provisions of Section 832.7.
(b) Complaints and any reports or findings relating to these
complaints shall be retained for a period of at least five years. All
complaints retained pursuant to this subdivision may be maintained
either in the peace officer's or custodial officer's
general personnel file or in a separate file designated by the
department or agency as provided by department or agency policy, in
accordance with all applicable requirements of law. However, prior to
any official determination regarding promotion, transfer, or
disciplinary action by an officer's employing department or agency,
the complaints described by subdivision (c) shall be removed from the
officer's general personnel file and placed in separate file
designated by the department or agency, in accordance with all
applicable requirements of law.
(c) Complaints by members of the public that are determined by the
peace officer's or custodial officer's employing agency
to be frivolous, as defined in Section 128.5 of the Code of Civil
Procedure, or unfounded or exonerated, or any portion of a complaint
that is determined to be frivolous, unfounded, or exonerated, shall
not be maintained in that officer's general personnel file. However,
these complaints shall be retained in other, separate files that
shall be deemed personnel records for purposes of the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) and Section 1043 of the
Evidence Code.
(1) Management of the peace officer's or custodial
officer's employing agency shall have access to the files described
in this subdivision.
(2) Management of the peace officer's or custodial
officer's employing agency shall not use the complaints contained in
these separate files for punitive or promotional purposes except as
permitted by subdivision (f) of Section 3304 of the Government Code.
(3) Management of the peace officer's or custodial
officer's employing agency may identify any officer who is subject to
the complaints maintained in these files which
that require counseling or additional training. However,
if a complaint is removed from the officer's personnel file, any
reference in the personnel file to the complaint or to a separate
file shall be deleted.
(d) As used in this section, section and
Section 832.7, the following definitions apply:
(1) "General "Exonerated" means that the
investigation clearly established that the actions of the peace
officer or custodial officer that formed the basis for the complaint
are not violations of law or department policy.
(2) "General personnel file"
means the file maintained by the agency containing the primary
records specific to each peace officer's or custodial
officer's employment, including evaluations, assignments, status
changes, and imposed discipline.
(3) "Sustained" means that the investigation disclosed sufficient
evidence to prove, by a preponderance of evidence, the truth of the
allegation in the complaint or that the actions of the peace officer
or custodial officer violated law or department policy.
(2)
(4) "Unfounded" means that the investigation clearly
established that the allegation is not true.
(3) "Exonerated" means that the investigation clearly established
that the actions of the peace or custodial officer that formed the
basis for the complaint are not violations of law or department
policy.
(e) (1) A municipality, county, or agency that employs peace
officers may do both of the following:
(A) Hold hearings to hear complaints by members of the public,
consider evidence, and adjudicate the complaints or recommend
adjudications.
(B) Establish a body to hold the hearings described in
subparagraph (A).
(2) Notwithstanding any confidentiality given to the general
personnel file or other personnel records of peace officers or
custodial officers, the hearings described in paragraph (1) may be
open to the public.
SEC. 6. Section 832.7 of the Penal Code is amended to read:
832.7. (a) Peace Except as set forth in
subdivision (c), peace officer or custodial officer
personnel records and records maintained by any state or local agency
pursuant to Section 832.5, or information obtained from these
records, are confidential and shall not be disclosed in any criminal
or civil proceeding except by discovery pursuant to Sections 1043 and
1046 of the Evidence Code. This
(b) (1) This
section shall not apply to investigations or proceedings
concerning the conduct of peace officers or custodial officers, or an
agency or department that employs those officers, conducted by a
grand jury, a district attorney's office, or the
Attorney General's office. office,
civilian review agencies, inspectors general, personnel boards,
police commissions, civil service commissions, city
councils, boards of supervisors, or any entities empowered to
investigate peace officer misconduct on behalf of an agency, conduct
audits of peace officer discipline on behalf of an agency, adjudicate
complaints against peace officers or custodial officers, hear
administrative appeals pursuant to Section 3304.5 of the Government
Code, or set policies or funding for the law enforcement agency.
(2) An entity allowed access to the personnel and complaint
records of peace officers or custodial officers under this
subdivision shall comply with the confidentiality provisions of this
section.
(c) (1) Notwithstanding any other law, all of the following peace
officer or custodial officer personnel records and records maintained
by any state or local agency pursuant to Section 832.5 shall be
available for public inspection pursuant to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code):
(A) A record related to the investigation or assessment of any use
of force by a peace officer that is likely to or does cause death or
serious bodily injury, including but not limited to, the discharge
of a firearm, use of an electronic control weapon or conducted energy
device, and any strike with an impact weapon to a person's head.
(B) A record related to any finding by a law enforcement agency or
oversight agency that a peace officer or custodial officer engaged
in sexual assault, an excessive use of force, an unjustified search,
detention or arrest, racial or identity profiling, as defined in
subdivision (e) of Section 13519.4, discrimination or unequal
treatment on the basis of race, color, ethnicity, national origin,
age, religion, gender identity or expression, sexual orientation, or
mental or physical disability, or any other violation of the legal
rights of a member of the public.
(C) A record related to any finding by a law enforcement agency of
job-related dishonesty by a peace officer or custodial officer,
including, but not limited to, perjury, false statements, filing
false reports, or destruction or concealment of evidence.
(2) Records that shall be released pursuant to this subdivision
include, but are not limited to, the framing allegation or complaint,
the agency's full investigation file, any evidence gathered, and any
findings or recommended findings, discipline, or corrective action
taken.
(3) A record disclosed pursuant to this section shall be redacted
only to remove personal data or information, such as a home address,
telephone number, or identities of family members, other than the
names and work-related information of peace and custodial officers,
to preserve the anonymity of complainants and witnesses, or to
protect confidential medical, financial, or other information in
which disclosure would cause an unwarranted invasion of personal
privacy that clearly outweighs the strong public interest in records
about misconduct by peace officers and custodial officers, or where
there is a specific, particularized reason to believe that disclosure
of the record would pose a significant danger to the physical safety
of the peace officer, custodial officer, or others.
(b)
(d) Notwithstanding subdivision (a),
subdivisions (a) and (c), a department or agency shall
release to the complaining party a copy of his or her own statements
at the time the complaint is filed.
(c)
(e) Notwithstanding subdivision (a),
subdivisions (a) and (c), a department or agency that
employs peace officers or custodial officers may
disseminate data regarding the number, type, or disposition of
complaints (sustained, not sustained, exonerated, or unfounded) made
against its officers if that information is in a form which does not
identify the individuals involved.
(d)
(f) Notwithstanding subdivision (a),
subdivisions (a) and (c), a department or agency that
employs peace officers or custodial officers may release
factual information concerning a disciplinary investigation if the
officer who is the subject of the disciplinary investigation, or the
officer's agent or representative, publicly makes a statement he or
she knows to be false concerning the investigation or the imposition
of disciplinary action. Information may not be disclosed by the peace
officer's or custodial officer's employer unless the
false statement was published by an established medium of
communication, such as television, radio, or a newspaper. Disclosure
of factual information by the employing agency pursuant to this
subdivision is limited to facts contained in the officer's personnel
file concerning the disciplinary investigation or imposition of
disciplinary action that specifically refute the false statements
made public by the peace off icer or custodial
officer or his or her agent or representative.
(e)
(g) (1) The department or agency shall provide written
notification to the complaining party of the disposition of the
complaint within 30 days of the disposition. The notification
shall include, at a minimum, the charges framed in response to the
complaint, the agency's disposition with respect to each of those
charges, any factual findings on which the agency based its
dispositions, and any discipline imposed or corrective action taken.
(2) The notification described in this subdivision shall not be
conclusive or binding or admissible as evidence in any separate or
subsequent action or proceeding brought before an arbitrator, court,
or judge of this state or the United States.
(f) Nothing in this section shall
(h) This section does not affect
the discovery or disclosure of information contained in a peace
officer's or custodial officer's personnel file pursuant to
Section 1043 of the Evidence Code.
SEC. 7. The Legislature finds and declares that Section 6 of this
act, which amends Section 832.7 of the Penal Code, furthers, within
the meaning of paragraph (7) of subdivision (b) of Section 3 of
Article I of the California Constitution, the purposes of that
constitutional section as it relates to the right of public access to
the meetings of local public bodies or the writings of local public
officials and local agencies. Pursuant to paragraph (7) of
subdivision (b) of Section 3 of Article I of the California
Constitution, the Legislature makes the following findings:
The public has a strong, compelling interest in law enforcement
transparency because it is essential to having a just and democratic
society.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a legislative
mandate that is within the scope of paragraph (7) of subdivision (b)
of Section 3 of Article I of the California Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.