BILL ANALYSIS
AB 312
Page 1
Date of Hearing: January 12, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 312 (Ammiano) - As Introduced: February 17, 2009
SUMMARY : Creates an Office of Citizen Complaints (OCC) to
review and investigate allegations of misconduct filed against
peace officers in the San Francisco Bay Area Rapid Transit
(BART) Police Department. Specifically, this bill :
1)Requires the BART Board to create an OCC to investigate
complaints and allegations of police misconduct by the BART
Police Department.
2)Provides for the nomination of an OCC Director by the district
attorneys of the Counties of Alameda, Contra Costa, and San
Francisco, subject to confirmation by the BART Board.
a) States that the director shall serve at the pleasure of
the BART Board.
b) Specifies that if the BART Board fails to act on the
appointment within 30 days, the appointment shall be deemed
approved.
c) Provides that when the office is vacant, the district
attorneys for Alameda, Contra Costa, and San Francisco
Counties shall collectively appoint an interim director who
shall serve at the pleasure of the BART Board.
d) Specifies that the OCC Director shall never have been a
member of the police department of the district or another
employee of the police department.
3)Authorizes the BART Board to organize, reorganize, and manage
the OCC.
a) Specifies that the OCC shall include investigators and
hearing officers.
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b) States that the OCC staff shall consist of no fewer than
one line investigator for every 150 police officers.
c) Specifies that no OCC employees shall have previously
served as uniformed members of the BART Police Department.
d) States that the Director OCC may appoint part-time
hearing officers.
4)Requires that the OCC investigate complaints of police
misconduct or allegation that a member of the police
department has not properly performed a duty and would
required the office to recommend disciplinary action to the
chief of police.
a) Specifies that the OCC shall investigate all complaints
of police misconduct or allegations that a member of the
police department has not properly performed a duty, except
those complaints which on their face clearly indicate that
the acts complained were proper, and except those
complaints lodged by members of the police department.
b) States that the OCC shall use its best efforts to
conclude investigations and if they are sustained transmit
the sustained complaint to the police department within
nine months of receipt thereof by the OCC.
c) Provides that if the OCC is unable to conclude its
investigation within the nine-month period, the OCC
Director shall inform the BART Police Chief of the reasons
therefore and transmit information and evidence from the
investigation to facilitate the chief's timely
consideration of the matter.
d) Provides that the OCC shall recommend disciplinary
action to the BART Police Chief on those complaints that
are sustained.
5)States that the OCC Director, after meeting and conferring
with the BART Police Chief or his or her designee, may verify
and file charges with the BART Board against members of the
police department arising out of sustained complaints,
provided the OCC Director may not verify and file those
charges for a period of 60 days following the transmittal of
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the sustained complaint to the police department, unless the
OCC Director issues a written determination that the
limitations period within which the member or members may be
disciplined may expire within that 60-day period and either:
a) The BART Police Chief fails or refuses to file charges
with the BART Board arising out of a sustained complaint;
b) The BART Police Chief or his or her designee fails or
refuses to meet and confer with the OCC Director on the
matter; or,
c) Other exigent circumstances necessitate that the OCC
Director verify and file charges to preserve the ability of
the BART Board to impose punishment.
6)Requires that the OCC Director schedule a hearing before a
hearing officer when a hearing is requested by the complainant
or a member of the department and when, in accordance with
rules of the office, the hearing will facilitate the
fact-finding process.
7)Specifies that nothing in this section shall prohibit the BART
Police Chief or a commanding officer from investigating the
conduct of a member of the police department under his or her
command, or taking disciplinary or corrective action when it
is warranted.
8)Requires the OCC to prepare monthly summaries of the
complaints received and quarterly recommendations concerning
policies or practices of the police department that could be
changed, along with a quarterly report to the BART Board.
9)Requires all departments, officers, and employees of the
district to promptly produce all records required by the
office and to otherwise cooperate with the office.
10)Requires the district to implement these and other related
provisions utilizing existing funds available to the district.
EXISTING LAW :
1)Establishes the Public Safety Officers Procedural Bill of
Rights. (California Government Code Section 3300.)
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2)States that the Legislature hereby finds and declares that the
rights and protections provided to peace officers under this
the Peace Officer Procedural Bill of Rights constitute a
matter of statewide concern. The Legislature further finds
and declares that effective law enforcement depends upon the
maintenance of stable employer-employee relations, between
public safety employees and their employers. In order to
assure that stable relations are continued throughout the
state and to further assure that effective services are
provided to all people of the state, it is necessary that this
chapter be applicable to all public safety officers, as
defined in this section, wherever situated within the State of
California. (California Government Code Section 3301.)
3)States that when any public safety officer is under
investigation and subjected to interrogation by his or her
commanding officer, or any other member of the employing
public safety department, that could lead to punitive action,
the interrogation shall be conducted under the following
conditions. For the purpose of this chapter, punitive action
means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment (California Government
Code Section 3303):
a) Specifies that the interrogation shall be conducted at a
reasonable hour, preferably at a time when the public
safety officer is on duty, or during the normal waking
hours for the public safety officer, unless the seriousness
of the investigation requires otherwise. If the
interrogation does occur during off-duty time of the public
safety officer being interrogated, the public safety
officer shall be compensated for any off-duty time in
accordance with regular department procedures, and the
public safety officer shall not be released from employment
for any work missed. [California Government Code Section
3303(a).]
b) States that the public safety officer under
investigation shall be informed prior to the interrogation
of the rank, name, and command of the officer in charge of
the interrogation, the interrogating officers, and all
other persons to be present during the interrogation. All
questions directed to the public safety officer under
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interrogation shall be asked by and through no more than
two interrogators at one time. [California Government Code
Section 3303(b).]
c) Provides that the public safety officer under
investigation shall be informed of the nature of the
investigation prior to any interrogation. [California
Government Code Section 3303(c).]
d) States that the interrogating session shall be for a
reasonable period taking into consideration gravity and
complexity of the issue being investigated. The person
under interrogation shall be allowed to attend to his or
her own personal physical necessities. [California
Government Code Section 3303(d).]
e) Provides that the public safety officer under
interrogation shall not be subjected to offensive language
or threatened with punitive action, except that an officer
refusing to respond to questions or submit to
interrogations shall be informed that failure to answer
questions directly related to the investigation or
interrogation may result in punitive action. No promise of
reward shall be made as an inducement to answering any
question. The employer shall not cause the public safety
officer under interrogation to be subjected to visits by
the press or news media without his or her express consent
nor shall his or her home address or photograph be given to
the press or news media without his or her express consent.
[California Government Code Section 3303(e).]
f) Specifies that no statement made during interrogation by
a public safety officer under duress, coercion, or threat
of punitive action shall be admissible in any subsequent
civil proceeding. This subdivision is subject to the
following qualifications [California Government Code
Section 3303(f)]:
i) This subdivision shall not limit the use of
statements made by a public safety officer when the
employing public safety department is seeking civil
sanctions against any public safety officer, including
specified disciplinary actions. [California Government
Code Section 3303(f)(1).]
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ii) This subdivision shall not prevent the admissibility
of statements made by the public safety officer under
interrogation in any civil action, including
administrative actions, brought by that public safety
officer, or that officer's exclusive representative,
arising out of a disciplinary action. [California
Government Code Section 3303(f)(2).]
iii) This subdivision shall not prevent statements made
by a public safety officer under interrogation from being
used to impeach the testimony of that officer after an in
camera review to determine whether the statements serve
to impeach the testimony of the officer. [California
Government Code Section 3303(f)(3).]
iv) This subdivision shall not otherwise prevent the
admissibility of statements made by a public safety
officer under interrogation if that officer subsequently
is deceased. [California Government Code Section
3303(f)(4).]
g) States that the complete interrogation of a public
safety officer may be recorded. If a tape recording is
made of the interrogation, the public safety officer shall
have access to the tape if any further proceedings are
contemplated or prior to any further interrogation at a
subsequent time. The public safety officer shall be
entitled to a transcribed copy of any notes made by a
stenographer or to any reports or complaints made by
investigators or other persons, except those which are
deemed by the investigating agency to be confidential. No
notes or reports that are deemed to be confidential may be
entered in the officer's personnel file. The public safety
officer being interrogated shall have the right to bring
his or her own recording device and record any and all
aspects of the interrogation. [California Government Code
Section 3303(g).]
h) Provides that if prior to or during the interrogation of
a public safety officer it is deemed that he or she may be
charged with a criminal offense, he or she shall be
immediately informed of his or her constitutional rights.
[California Government Code Section 3303(h).]
i) States that upon the filing of a formal written
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statement of charges, or whenever an interrogation focuses
on matters that are likely to result in punitive action
against any public safety officer, that officer, at his or
her request, shall have the right to be represented by a
representative of his or her choice who may be present at
all times during the interrogation. The representative
shall not be a person subject to the same investigation.
The representative shall not be required to disclose, nor
be subject to any punitive action for refusing to disclose,
any information received from the officer under
investigation for non-criminal matters. Specifies that
this section shall not apply to any interrogation of a
public safety officer in the normal course of duty,
counseling, instruction, or informal verbal admonishment
by, or other routine or unplanned contact with, a
supervisor or any other public safety officer, nor shall
this section apply to an investigation concerned solely and
directly with alleged criminal activities. [California
Government Code Section 3303(i).]
j) Provides that no public safety officer shall be loaned
or temporarily reassigned to a location or duty assignment
if a sworn member of his or her department would not
normally be sent to that location or would not normally be
given that duty assignment under similar circumstances.
[California Government Code Section 3303(j).]
4)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 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. [California
Government Code Section 3304(a).]
5)Provides 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.
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[California Government Code Section 3304(b).]
6)States no chief of police may be removed by a public 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. For purposes of this
subdivision, the removal of a chief of police by a public
agency or appointing authority, for the purpose of
implementing the goals or policies, or both, of the public
agency or appointing authority, for reasons including, but not
limited to, incompatibility of management styles or as a
result of a change in administration, shall be sufficient to
constitute "reason or reasons." Nothing in this subdivision
shall be construed to create a property interest, where one
does not exist by rule or law, in the job of Chief of Police.
[California Government Code Section 3304(c).]
7)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. This one-year limitation
period shall apply only if the act, omission, or other
misconduct occurred on or after January 1, 1998. 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 disciplinary action
within that year, except in any of the following circumstances
[California Government Code Section 3304(d)]:
a) If the act, omission, or other allegation of misconduct
is also the subject of a criminal investigation or criminal
prosecution, the time during which the criminal
investigation or criminal prosecution is pending shall toll
the one-year time period.
b) If the public safety officer waives the one-year time
period in writing, the time period shall be tolled for the
period of time specified in the written waiver.
c) If the investigation is a multi-jurisdictional
investigation that requires a reasonable extension for
coordination of the involved agencies.
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d) If the investigation involves more than one employee and
requires a reasonable extension.
e) If the investigation involves an employee who is
incapacitated or otherwise unavailable.
f) If the investigation involves a matter in civil
litigation where the public safety officer is named as a
party defendant, the one-year time period shall be tolled
while that civil action is pending.
g) If the investigation involves a matter in criminal
litigation where the complainant is a criminal defendant,
the one-year time period shall be tolled during the period
of that defendant's criminal investigation and prosecution.
h) If the investigation involves an allegation of workers'
compensation fraud on the part of the public safety
officer.
8)Provides where a predisciplinary response or grievance
procedure is required or utilized, the time for this response
or procedure shall not be governed or limited by this chapter.
[California Government Code Section 3304(e).]
9)States if, after investigation and any predisciplinary
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. [California Government Code
Section 3304(f).]
10)Specifies, notwithstanding the one-year time period
specified, an investigation may be reopened against a public
safety officer if both of the following circumstances exist
[California Government Code Section 3304(g)]:
a) Significant new evidence has been discovered that is
likely to affect the outcome of the investigation.
b) One of the following conditions exist:
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i) The evidence could not reasonably have been
discovered in the normal course of investigation without
resorting to extraordinary measures by the agency.
ii) The evidence resulted from the public safety
officer's predisciplinary response or procedure.
11)States that the Legislature hereby finds and declares that
the rights and protections provided to peace officers under
this the Peace Officer Procedural Bill of Rights constitute a
matter of statewide concern. The Legislature further finds
and declares that effective law enforcement depends upon the
maintenance of stable employer-employee relations, between
public safety employees and their employers. In order to
assure that stable relations are continued throughout the
state and to further assure that effective services are
provided to all people of the state, it is necessary that this
chapter be applicable to all public safety officers, as
defined in this section, wherever situated within the State of
California. (California Government Code Section 3301.)
12)Provides for the creation of the San Francisco BART District,
comprising the territory lying within the boundaries of the
Counties of Alameda, Contra Costa, Marin, San Francisco, and
San Mateo. (California Public Utilities Code Section 28600.)
13)States that the government of the BART District shall be
vested in the board of directors. (California Public
Utilities Code Section 28730.)
14)Provides that each member of the BART Board shall be selected
in accordance with the articles of the Public Utilities Code
and shall be a resident and registered voter of the county
from which appointed. (California Public Utilities Code
Section 28731.) Additionally, members of boards of
supervisors, mayors, or members of city council may also serve
contemporaneously as members of the BART Board. (California
Public Utilities Code Section 28731.5.)
15)Establishes the BART Police as employees of the BART District
as a "suitable security force." (California Public Utilities
Code Section 28767.5.)
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "Despite years
of complaints of police misconduct, including officer-involved
shooting deaths, the BART Police Department has never
established an independent body to investigate the actions of
BART Police officers. As a result, public faith in the
authority of the BART Police is waning.
"The shooting of Oscar Grant is a sad and unfortunate reminder
that the BART Police needs additional oversight as exists for
other law enforcement agencies. Unfortunately, this isn't the
first time a young person has been shot and killed by an
on-duty officer with BART. There have been other deaths and
untold numbers of cases of brutality. The BART Board's
proposed internal subcommittee to review BART police
practices, while appreciated, is simply not enough. A young
man was killed and the community is justifiably outraged, it's
long overdue for civilian oversight."
2)Background : According to the background submitted by the
author, "[d]espite years of complaints of police misconduct,
including officer-involved shooting deaths, the BART Police
Department has never established an independent body to
investigate the actions of BART Police officers. As a result,
public faith in the authority of the BART Police is waning.
"Early on New Year's Day, Oscar Grant III, an unarmed
passenger on BART was shot dead during an altercation with the
BART Police.
"There have been many reports of alleged brutality against the
BART Police and at least two other officer related deaths, in
1992 and 2000. On numerous occasions, Bay Area residents have
asked the BART Commission to establish an office of citizen
complaints to review police action, but no such office has
ever been established.
"Although other Bay Area law enforcement agencies, including
San Francisco and Berkeley Police Departments, operate with an
independent oversight body, BART has resisted pressure to
institute an independent body to review civilian complaints.
As a result, BART Police review complaints against their own
agency. There is no independent oversight of BART Police.
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"While the BART Police Department does have an Internal
Affairs Department that handles civilian complaints of
misconduct, no group independent of the BART Police has been
established to investigate the actions of BART officers."
3)Establishes a Civilian Investigating Organization and Review
Process : This bill removes the investigation and oversight of
police misconduct cases from the Internal Affairs Division of
the BART Police Department.
The investigation would be conducted by an independent OCC
that would investigate allegations of police misconduct. The
OCC would conduct interviews of the complainant, any
witnesses, and the officers involved. The OCC would then make
recommendations to the BART Police Chief as to whether
discipline should be imposed.
The ultimate authority as to whether to impose discipline
would be shared by the BART Police Chief and the BART Board.
The BART Board, acting as the board of directors for the BART
District, would have the ultimate decision as to whether to
impose discipline at the conclusion of an OCC investigation
and/or any disciplinary hearings.
4)Ensures Independent Investigations of Complaints Filed Against
Law Enforcement : This bill establishes an independent OCC.
Under existing procedures, complaints filed against BART
police officers are investigated by the Internal Affairs
Division of the BART Police Department. Those internal
investigations are then referred to the chief of police for
disciplinary action.
Under this bill, an independent OCC would be established. The
OCC Director would be chosen by the district attorneys of the
Counties of Alameda, Contra Costa, and San Francisco. The
BART Board would have final say over the appointment of the
director. This bill specifies that the OCC Director cannot
have been an employee of the BART Police Department. All
other OCC employees cannot have served as uniformed BART
police officers. Under this bill, the investigation of the
BART police will be conducted by an independent, confidential,
outside agency.
5)Officer Confidentiality is Maintained by this Legislation :
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Nothing in this bill effects the California Supreme Court
decision in Copley Press, Inc. v. Superior Court. In Copley,
a newspaper in San Diego sought records through a public
records request from a public commission. The records were
related to the facts and circumstances and what discipline was
ordered of an officer for the failure to arrest a suspect in a
domestic violence incident despite having probable cause to do
so, the failure to prepare a written report documenting the
incident, and dishonesty in falsely indicating in the patrol
log that the victim bore no signs of injury and that the
suspect was "gone on arrival."
The Copley Court was considering whether or not the California
Public Records Act (CPRA) requires disclosure of records of a
county civil service commission relating to a peace officer's
disciplinary matter. The Supreme Court concluded that the
Penal Code, as written, exempts peace officer personnel
records from disclosure requirements under the CPRA. The
Court also stated that the commission's files were
confidential files of the employing agency within the meaning
of Penal Code. The Court also ruled that the press has no
constitutional right of access to peace officer personnel
records because the California Constitution specifically
exempts such records and there is no First Amendment right to
particular government information.
Previous legislation by this Committee in the previous
legislative session, SB 1019 (Romero) and AB 1648 (Leno),
sought to abrogate this decision. Those bills sought to give
the public access to the disciplinary hearings as was afforded
previous to the decision in Copley. AB 1648 was held in this
Committee; SB 1019 failed passage in this Committee, was
granted reconsideration, and was returned to the Chief Clerk
of the Assembly.
Unlike the previous efforts to abrogate Copley, this bill
would abide by the parameters set forth by the California
Supreme Court. All hearings would be confidential, and
officer privacy would not be at issue.
6)State Legislature has the Authority to Create an OCC : The
author argues that BART Commission exists under legislative
authority and, thus, the Legislature is empowered to impose
the review process in this bill. The State of California did
create the BART District in the California Public Utilities
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Code Section 28600 and the BART Police Department in the
California Public Utilities Code Section 28767.5. The BART
District and its government are unique in that it is comprised
of the Counties of Alameda, Contra Costa, Marin, San
Francisco, and San Mateo, with varying degrees of involvement
with BART. The California Legislature is empowered to create
an OCC for the BART District, at it was created by the
Legislature originally.
7)Argument in Support : According to the City of Oakland , "[i]f
passed by the Legislature, AB 312 would require the BART board
to create an OCC to investigate complaints and allegations of
police misconduct by the BART police department and would also
provide for the nomination of the director of that office by
the district attorneys of the Counties of Alameda, Contra
Costa, and San Francisco, subject to the confirmation by the
board. Among other provisions, the bill would require the
staff of the office to consist of no fever than one
investigator for every 150 sworn members of the police
department, require the office to investigate complaints of
police misconduct or allegations that a member of the police
department has not performed a duty, require the office to
recommend disciplinary action to the chief of police, and
require the office to prepare monthly summaries of the
complaints received and quarterly recommendations concerning
policies or practices of the police department that could be
changed, along with a quarterly report to the board.
"Creation of the OCC would provide concerned Oakland residents
the opportunity to bring forth complaints of BART police
misconduct with the certainty and confidence that such
complaints will not be overlooked; but rather be recorded,
investigated, and thoroughly reviewed."
8)Argument in Opposition: According to the Peace Officers
Research Association of California (PORAC), "PORAC is opposed
to this legislation for two main reasons. First, the language
creates an oversight commission that has the final say as to
the imposition of discipline. PORAC is opposed to any
commission having the final authority over an Agency's Chief
or Sheriff. Second, AB 312 creates a precedence wherein the
Legislature would be passing laws implementing this oversight
commission and its governing rules to local agencies,
bypassing the local community, agency management and labor,
and the Board of Directors.
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"PORAC does not understand why Assemblymember Ammiano feels
the need to introduce legislation when the 'system' for this
tragic event is working. The officer has been arrested and is
being prosecuted for murder. The local agency, along with
input from the community, its Board and the labor
organizations, are meeting on a regular basis to put in place
an oversight commission at the local level.
"We appreciate the need for the bill, if the intent of the
measure is to put pressure on the locals to create an
oversight commission. However, knowing that the creation of
an oversight commission is taking place among local
stakeholders, and that the Assemblymember has been invited to
be a part of that process, PORAC feels that there is no need
for this bill. Furthermore, we feel that legislation will
only work against the attempt by all parties involved in the
tragedy to work together to earn back the public's trust."
9)Related Legislation : AB 955 (De Leon) specifies that
discipline need not be imposed upon a peace officer within the
one year statute of limitations placed upon investigations and
imposition of penalty by the Public Safety Officers Procedural
Bill of Rights. AB 955 will be heard by this Committee on
April 21, 2009.
REGISTERED SUPPORT / OPPOSITION :
Support
California Teachers Association
California Young Democrats
City of Berkeley
City of Oakland
D&N Institute (East Bay Small Business Council)
Ella Baker Center for Human Rights
Globe Newspaper Group
People United for a Better Life in Oakland
Taxpayers for Improving Public Safety
100 Black Men of the Bay Area, Inc.
13 private individuals
Opposition
Association for Los Angeles Deputy Sheriffs
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California Association of Highway Patrolmen
California Peace Officers' Association
California Police Chiefs Association
Peace Officers Research Association of California
Riverside Sheriffs' Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744